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5000 CPS Legal Functions

CPS March 2018

Section 5000 of the CPS handbook provides information about the tasks CPS caseworkers perform as part of or in preparation for a court hearing. While there is some crossover with traditional social casework, Section 5000 focuses primarily on the activities of CPS caseworkers in, rather than outside of, the court process.

5100 Alternatives to Removal

CPS March 2018

DFPS is required to investigate reports of child abuse and neglect.

If the problems in the household can be addressed through providing services to the family and the parents voluntarily participate in those services, no court action may be necessary.

If the parents do not cooperate in the investigation or with recommended services, DFPS does not have authority to act without a court order. In most circumstances. DFPS may, therefore, request a court order to require:

  •   a parent to cooperate with an investigation;

  •   a parent to participate in services; or

  •   a perpetrator of abuse to leave the home or to stay away from a victim.

DFPS also requests court orders to remove the child from the home, if ensuring a child’s safety makes it necessary. There are three kinds of removals, each with a different legal standard, depending on the seriousness of the harm and urgency of the circumstance. See 5400 From Removal to the Adversary Hearing.

To request a removal order, the caseworker writes an affidavit that contains sufficient facts to meet the applicable legal standard.

The caseworker may also be required to testify about the reasons for removal and, if so, may be cross-examined by attorneys for the parents. Cross-examination permits an attorney for the other side to ask questions designed to reveal any inconsistencies, errors, or bias in an affidavit or testimony.

The lawsuit that DFPS files when a child must be removed is called a suit affecting the parent-child relationship (SAPCR).

To initiate the lawsuit, DFPS files a document known as a petition.

The petition tells the court and the child’s parents that:

  •   DFPS is requesting custody of the child; and

  •   DFPS may seek termination of parental rights if reunification is not possible or successful.

As long as a child remains in DFPS’s legal custody, federal and state laws require that the court review the case at specific times and make certain findings. The court must continue to assess the child’s circumstances, the parents’ compliance with the service plan, and whether DFPS has complied with federal and state law.

What follows is an overview of the legal requirements DFPS must adhere to when court intervention is needed to protect children. While there can be many consequences for failing to comply with legal requirements, the most important is that DFPS’s ability to protect a child can be jeopardized.

The items in this section explain the actions that may be taken either to prevent a removal, to resolve a case in a manner that makes removal unnecessary (for example, obtaining a protective order or requesting court-ordered services), or to make progress in a removal case (for example, to obtain court-ordered services

5110 Court Orders in Aid of an Investigation

CPS March 2018

Unless a local court’s rule prohibits it, a court may hold an ex parte hearing, with only DFPS present, to consider a court order in aid of an investigation.

DFPS may request a court order in aid of an investigation if:

  •   the parent, the person responsible for the child’s care, or another person in charge of the home, school, or other place where the child is located is not granting DFPS admission to that location;

  •   the parent or other person responsible for the child’s care does not consent to the release of the child’s prior medical, psychological, or psychiatric records; or

  •   the parent or other person responsible for the child’s care does not consent to a medical, psychological, or psychiatric examination of the child.

Texas Family Code, §261.303

5111 Approval to Seek a Court Order in Aid of an Investigation

CPS March 2018

If the caseworker determines that a court order is necessary to aid an investigation, the caseworker must first obtain the supervisor’s approval.

If the supervisor approves, the caseworker must consult the attorney representing DFPS to determine whether to move forward.

5112 Proof Required to Obtain a Court Order in Aid of Investigation

CPS March 2018

To provide the proof required to obtain a court order in aid of investigation, the caseworker must complete an affidavit that includes the facts and evidence sufficient to satisfy the court that there is good cause to grant the order. This affidavit is attached to a motion which the attorney representing DFPS files with the court.

The caseworker must use the Sample Affidavit In Support of Order In Aid of Investigation, unless the local court requires otherwise. The sample affidavit is provided under the Affidavit heading in The Texas Practice Guide for Child Protective Services Attorneys.

Good cause is not defined in statute, so the caseworker must submit an affidavit that demonstrates in detail:

  •   why the order is being requested; specifically, how and when the caseworker was refused;

  •   access to the child;

  •   access to the child’s medical, psychological, or psychiatric records; or

  •   consent to take the child for a medical, psychological, or psychiatric examination;

  •   why the requested access, records, or examination would aid the investigation as required by law; and

  •   any other information relevant to the case.

5113 Notice and Service Requirements for a Court Order

CPS March 2018

Unless a local court’s rule prohibits it, a hearing to consider a court order in aid of an investigation is conducted ex parte; that is, with only one party present.

The hearing is conducted with only DFPS present:

  •   to give DFPS timely access to a child or records; and

  •   to avoid giving the alleged perpetrator an opportunity for absconding, removing the child from the jurisdiction, or altering or otherwise limiting CPS’s access to needed evidence.

The caseworker is not required to provide advance notice of the hearing to the parent or other person who will be affected by the order. Because it is an ex parte hearing, the parent or person who will be affected does not appear at the hearing.

If the court grants a court order in aid of an investigation, the caseworker must ensure that the parent or other responsible person is given notice of the court’s order at the time that the order is carried out.

5120 Removing the Alleged Perpetrator From the Home

CPS March 2018

DFPS must file a petition to remove the alleged perpetrator from the child’s home to ensure the child’s safety, rather than attempt to remove the child, if DFPS determines that:

  •   the alleged perpetrator abused a child in the home; and

  •   the abused child would be safe in the child’s home by removing the alleged perpetrator from the home.

If the case involves family violence, the caseworker must consult with the adult victim about seeking an order removing the alleged perpetrator from the home. In determining whether the child would be safe in the home if such an order was obtained, the caseworker must discuss with the adult victim:

  •   his or her ability to enforce the order; and

  •   the possibility of criminal liability for failure to enforce.

 The caseworker may offer a referral to a Family Violence Shelter Center or the Texas Advocacy Project for additional advice on obtaining a protective order. This advice may help the adult victim and the caseworker to consider whether the protective order would increase safety for the child and others the perpetrator has harmed.

Texas Family Code §262.1015(a)

Instead of, or in addition to, filing a temporary restraining order to remove the alleged perpetrator, DFPS may:

  •   file an application for a protective order on the child’s behalf; or

  •   assist the parent or other adult with whom the child lives to obtain a protective order, if the caseworker determines that the parent or other adult demonstrates sufficient protective capacity to implement and abide by the order.

See 5140 Orders for Protection of a Child or Family Member.

5121 Seeking an Order to Remove an Alleged Perpetrator From the Home

5121.1 Approval to Seek an Order to Remove an Alleged Perpetrator From the Home

CPS March 2018

If the caseworker determines that DFPS must seek a court order to remove the alleged perpetrator, the caseworker must first obtain the supervisor’s approval.

If the supervisor agrees, the caseworker must consult with the attorney representing DFPS to determine whether to move forward.

5121.2 Proof Required to Support an Order to Remove an Alleged Perpetrator From the Home

CPS March 2018

The caseworker must draft an affidavit containing facts and evidence sufficient to satisfy the court that:

  •   the child’s physical health or safety is in immediate danger, or the child has been a victim of sexual abuse;

  •   there is no time to hold an adversary hearing, without jeopardizing the child’s physical health or safety;

  •   the child is not in danger of abuse from a parent or other adult with whom the child will continue to live;

  •   the parent or other adult with whom the child will continue to live is likely to:

  •   make a reasonable effort to monitor the home; and

  •   report to DFPS and the appropriate law enforcement agency any attempt by the alleged perpetrator to return to the home; and

  •   issuing the order is in the child’s best interest.

The caseworker must use the Sample Affidavit in Support of Order for Removal of Alleged Perpetrator, unless the local court requires otherwise. The sample affidavit is provided under the Affidavit heading in The Texas Practice Guide for Child Protective Services Attorneys.

The court follows certain standards when deciding to issue a temporary restraining order.

5121.3 Standard for Court’s Decision on Whether to Issue a Temporary Restraining Order

CPS March 2018

The court may issue a temporary restraining order to remove the alleged perpetrator from the home if the conditions are met in 5121.2 Proof Required to Support an Order to Remove an Alleged Perpetrator From the Home.

The court shall order the removal of an alleged perpetrator in instances where the court finds the child is not in danger of abuse from a parent or other person with whom the child is going to reside and:

  •   the alleged perpetrator’s presence in the child’s residence constitutes a continuing danger to the of child’s physical health or safety; or

  •   the child has been the victim of sexual abuse and there is a substantial risk that the child will be the victim of sexual abuse in the future if the alleged perpetrator remains in the residence.

Texas Family Code §262.1015

5121.4 Notice and Service Requirements for a Court Order to Remove an Alleged Perpetrator From the Home

CPS March 2018

The court holds an ex parte hearing, with only DFPS present, to seek an order to remove the alleged perpetrator from the home. One of the required elements for obtaining an order to remove an alleged perpetrator from a child’s home is that there is no time for an adversary hearing with notice to the parties. However, the caseworker and the attorney representing DFPS may determine that it is appropriate for the non-abusive parent to attend the hearing.

The caseworker must ensure that the alleged perpetrator is served with the order after it is issued.

Regardless of whether the non-abusive parent attends the hearing, the caseworker must ensure that the non-abusive parent is also served with the order after it is issued.

5122 The Effect of a Temporary Restraining Order for Removal of the Alleged Perpetrator

CPS March 2018

A temporary restraining order for the removal of an alleged perpetrator from a child’s home requires the parent or other adult with whom the child will continue to live to do the following:

  •   Make a reasonable effort to monitor the home (that is, do more than keep watch; take reasonable action to keep the child safe).

  •   Report to DFPS and the appropriate law enforcement agency any attempt by the alleged perpetrator to return to the home.

The caregiver commits a Class A misdemeanor if he or she fails to monitor or report.

The alleged perpetrator:

  •   commits a Class A misdemeanor if he or she returns to the home; or

  •   commits a third-degree felony if he or she returns to the home and has a previous conviction for returning to a home in violation of an order for removal.

Texas Family Code §262.1015(d)-(h)

5123 Duration of a Temporary Restraining Order for Removal of an Alleged Perpetrator

CPS March 2018

A temporary restraining order to remove an alleged perpetrator expires not later than the 14th day after the date the order was issued.

If the caseworker and supervisor determine that an order for a longer duration is needed, the caseworker must consult with the attorney representing DFPS to consider seeking either:

  •   a temporary order; or

  •   a permanent injunction, which remains in effect longer than a temporary restraining order.

5130 Order to Obtain a Parent’s Mental Health Records or an Examination of a Parent

CPS March 2018

During an investigation, a caseworker may need to determine if a parent or other person responsible for the care of a child has a history of medical or mental illness.

If the parent or other responsible person does not consent to give DFPS access to the necessary records or does not consent to a medical, psychological, or psychiatric examination, DFPS may request an order permitting access to the records or an examination.

Texas Family Code, §261.305

5131 Approval to Seek a Court Order to Obtain a Parent’s Records or Require an Examination

CPS March 2018

When conducting an investigation a caseworker may:

  •   require a parent’s mental health records; or

  •   require a parent to get a medical, psychological, or psychiatric examination.

If the parent does not consent, the caseworker must obtain the supervisor’s approval to seek a court order.

If the supervisor approves, the caseworker must consult the attorney representing DFPS to determine whether to move forward.

5132 Proof Required in Support of a Court Order to Obtain a Parent’s Records or Require an Examination

CPS March 2018

The caseworker must complete an affidavit that includes the facts and evidence sufficient to satisfy the court that there is good cause to grant the order to obtain a parent’s mental health records or require a parent to get a medical, psychological, or psychiatric examination.

Good cause is not defined in statute, so the caseworker must submit an affidavit that demonstrates in detail:

  •   why the order is being requested; specifically, how and when the caseworker was refused records or an examination;

  •   why the requested records or examination would aid the investigation; and

  •   any other information relevant to the particular case.

5133 Notice and Service Requirements for a Court Order to Obtain a Parent’s Records or Examination

CPS March 2018

If DFPS seeks an examination or the records of a parent or other responsible person, DFPS must give notice of the hearing, so that the parent or other responsible person may participate in the hearing and have a chance to rebut DFPS’s evidence.

5140 Orders for Protection of a Child or Family Member

CPS March 2018

Texas law allows a court to issue a protective order to protect household members from family violence, if certain conditions are met.

The definition of family violence includes:

  •   an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault, or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault; or

  •   the physical abuse and sexual abuse of a child by a member of the household, as those terms are defined in TFC §261.001 (1)(C),(E), and (G), (H), (I), (J), and (K).

Texas Family Code Ch. 82; §71.004 (1) and (2)

See also 2112 Primary Statutory Definitions.

A protective order can require the perpetrator of family violence to leave the home or to take or refrain from taking certain action.

For example, the court may prohibit the perpetrator from going to the child’s home, child-care facility, or school, or from communicating with the other parent or child. The court may also order the perpetrator to complete a batterer’s treatment program or counseling.

Texas Family Code §§85.021, 85.022

5141 Seeking a Protective Order

5141.1 Who May Apply for a Protective Order

CPS March 2018

The following persons may apply for a protective order:

  •   Any adult seeking to protect:

  •   himself or herself;

  •   a child; or

  •   another adult member of the family or household

  •   Any prosecuting attorney who represents the state

  •   A caseworker, on behalf of DFPS, to protect any person alleged to be the victim of family violence

  •   Any child or adult who is a member of a dating relationship and alleged to be a victim of dating violence

Texas Family Code §82.002

Alternatively, in some circumstances DFPS can file for a protective order for a child in the agency’s temporary managing conservatorship under Texas Family Code §§261.501-505.

5141.2 Alternatives to Seeking a Protective Order

CPS March 2018

Ultimately, it is the victim’s decision to seek a protective order.

While a protective order can be a useful tool for protecting a child or other household member, initiating legal action against a family violence perpetrator (sometimes referred to as a batterer) may and frequently does escalate family violence. In general, therefore, the caseworker must only advise and assist the victim (also referred to as the survivor) in seeking a protective order, other than in rare cases in which DFPS files for the protective order on the victim’s behalf.

The caseworker and the victim must consult with local family violence advocates and resources, whenever possible, to explore other ways of ensuring a child’s safety without filing for a protective order.

If the victim is unwilling to file for a protective order, the caseworker must determine if there are other alternatives to the protective order that will help ensure the child’s safety, before considering removing the child. Other alternatives include:

  •   moving the victim and child to a shelter;

  •   assisting the victim in developing economic self-sufficiency to support a separation from the perpetrator of family violence; or

  •   any other alternative that would allow the child to safely remain in the home.

Filing for a Protective Order

A parent who feels safe doing so may file for a protective order himself or herself.

In some cases, the parent may feel more comfortable with DFPS or the prosecuting attorney filing the application. In some counties, the prosecutor may determine that representing a petitioner with an open DFPS case creates a conflict of interest, and the victim may have no other means of obtaining a protective order other than DFPS filing on the victim’s behalf.

5141.3 Approval to Seek a Protective Order

CPS March 2018

Before assisting a parent or other adult victim who wishes to apply for a protective order, or before filing an application for a protective order on behalf of a parent or child who is the victim of family violence, the caseworker must consult with:

  •   that parent;

  •   the caseworker’s supervisor; and

  •   the attorney representing DFPS in the case.

The victim (when possible) and the caseworker (when possible) must also consult with local advocates for victims of family violence about how seeking an order might affect the family’s or household’s safety. While all parties must be involved in the decision to apply for a protective order, the victim must ultimately make the decision.

DFPS Rules, 40 TAC §700.1111

5141.4 Notice About a Protective Order

CPS March 2018

If DFPS is seeking a protective order on a victim’s behalf and the caseworker determines that it will not endanger the victim’s safety or another family or household member’s safety, the caseworker must:

  •   send written notice about the intent to apply for a protective order to the parent who would be protected; and

  •   request that parent’s assistance in developing a safety plan for the child and other household members for whom the order is sought.

If there is any concern that the notice will endanger the safety of the victim or any other family or household member, the caseworker must not send the notice in writing. The caseworker instead must discuss the plan with the parent who wishes to seek the order.

DFPS Rules, 40 TAC §700.1111(c)

For the steps involved in developing a safety plan for the child and family, see 2270 Ensuring Child Safety.

5142 Required Findings and the Protective Order

CPS March 2018

If the court finds that family violence has occurred and is likely to occur in the future, the court:

  •   renders a protective order that applies only to the person found to have committed family violence; and

  •   may render a protective order that contains conditions that apply to both parties and that are in the best interest of the person protected by the order or another member of the protected person’s family or household.

Texas Family Code §85.001(b)

5143 Duration of Protective Orders

5143.1 Duration of a Temporary Protective Order

CPS March 2018

A protective order may be issued on a temporary basis, without first notifying the alleged perpetrator of the family violence or without holding a hearing.

A temporary order lasts for a maximum of 20 days, with a possibility of one 20-day extension.

Texas Family Code §§83.001 – 83.002

5143.2 Duration of a Final Protective Order

CPS March 2018

A final protective order is issued only after a court hearing is held, for which the alleged perpetrator of family violence has been provided notice and an opportunity to appear.

Generally, a protective order may be entered for the period specified in the order, not to exceed two years. If the order does not specify an effective period, the order expires two years after being issued.

A protective order can exceed two years, if the court finds that the perpetrator has committed family violence and:

  •   the act of family violence is a felony offense against the applicant or a member of the applicant’s family or household, regardless of whether the perpetrator has been charged with or convicted of the offense;

  •   the perpetrator of family violence caused serious bodily injury to the applicant or a member of the applicant’s household; or

  •   the perpetrator of family violence was the subject of two previous protective orders involving the same victims and the perpetrator is likely to commit family violence in the future.

The perpetrator may seek an annual review challenging the continuing need for a protective order.

Texas Family Code §85.025

5143.3 The Caseworker’s Role in Supporting the Victim

CPS March 2018

In general, the caseworker’s role is to provide support when a victim seeks, or asks DFPS to seek, a protective order.

After following the policy in 5141.3 Approval to Seek a Protective Order, the caseworker may:

  •   be a witness and provide evidence and other information the prosecutor needs, such as:

  •   information about how the violence affects the child’s safety;

  •   facts about family violence incidents in the home or family; and

  •   other information about the case relevant to the protective order;

  •   complete and submit an affidavit detailing the facts that the caseworker is aware of related to family violence;

  •   accompany the victim to the courthouse;

  •   help the victim complete the necessary forms and paperwork;

  •   seek community resources and other resources to support the victim in seeking a protective order and support any related transition in the victim’s relationship with the perpetrator.

5150 Temporary Restraining Orders (TRO)

5151 Purpose and Use of Temporary Restraining Orders

CPS March 2018

DFPS may request a temporary restraining order to prohibit parents from removing a child from the state before DFPS can complete an investigation of abuse or neglect of the child. DFPS makes this request at an ex parte hearing which only DFPS attends.

To request a temporary restraining order, DFPS must present evidence to the court that DFPS:

  •   has probable cause to conduct the investigation; and

  •   has reason to believe that the person may remove the child from the state.

Texas Family Code §261.306(a), (b)

DFPS may also use a temporary restraining order to prevent a family from hiding a child during an investigation.

5152 Approval to Seek a Temporary Restraining Order

CPS March 2018

If the caseworker determines that a temporary restraining order is necessary to prevent a child from being moved, the caseworker must obtain the supervisor’s approval.

If the supervisor approves, the caseworker must consult with the attorney representing DFPS to determine whether to move forward.

5153 Service Requirements for a Temporary Restraining Order

CPS March 2018

A sheriff or constable must serve the temporary restraining order on the parent, for the order to take effect and prevent a child from being moved.

The caseworker must consult with the attorney representing DFPS to ensure that an order is properly served.

5154 Duration of a Temporary Restraining Order

CPS March 2018

A temporary restraining order issued to prevent a child from being moved expires no later than the 14th day after the date the order was rendered.

If the caseworker and supervisor determine that an order for a longer duration is needed, the caseworker must consult with the attorney representing DFPS to consider seeking one 14-day extension; however, because the orders are meant to be temporary rather than long term, the caseworker must make every effort to complete the investigation while the first order is in effect.

Texas Rules of Civil Procedure, Rule 680

5160 Court-Ordered Services

CPS March 2018

The caseworker may request a court order for services when:

  •   a family refuses services;

  •   a family is not cooperating with services; or

  •   the weight of the court’s authority would likely increase the family’s willingness to participate.

The caseworker must be able to present the facts that meet this standard.

5161 Approval to Seek a Court Order for Services

CPS March 2018

If the caseworker determines that an order for services is appropriate, the caseworker must first obtain the supervisor’s approval.

If the supervisor approves, the caseworker must consult with the attorney representing DFPS to determine whether to move forward.

5162 The Proof Required to Support a Court Order for Services

CPS March 2018

The caseworker must draft an affidavit with facts and evidence sufficient to satisfy the court to order the parent to:

  •   participate in services to reduce the effects of abuse or neglect or to reduce the likelihood of future abuse or neglect; or

  •   permit the child and any siblings to receive services.

The affidavit must demonstrate why the parent’s or child’s participation in services is needed in the case.

A parent’s failure to comply with court-ordered services is relevant evidence at trial.

Texas Family Code, §264.203

The caseworker must use the Sample Affidavit in Support of Order to Participate in Services, unless the local court requires otherwise. The sample affidavit is provided under the Affidavit heading in The Texas Practice Guide for Child Protective Services Attorneys.

If the court denies a request to order participation in services, the court must specify its reasons in writing.

5163 Notice and Service Requirements for Order for Services

CPS March 2018

When DFPS seeks to require a parent to participate in services or allow the parent’s child to participate in services, DFPS must ensure that the parent:

  •   is served with a citation about the court-ordered service; and

  •   receives notice of the hearing.

Generally the legal representatives for the agency will have primary responsibility for service of citation and notice of hearings. Caseworkers must confirm with a supervisor what specific duties are assigned to caseworkers, as individual offices have different protocols.

The parent is permitted to participate in the hearing.

5170 Taking Possession of a Child With Intent to Return

CPS March 2018

DFPS may take possession of a child if:

  •   there is an immediate threat to the child’s physical health or safety; and

  •   the sole purpose of taking possession is to return the child without unnecessary delay to the parent, managing conservator, possessory conservator, guardian, caregiver, or custodian who is lawfully entitled to possession of the child.

DFPS must not use this authority to conduct a removal. DFPS may only use this authority when DFPS intends to return the child to his or her lawful caregiver.

In this circumstance, DFPS may retain possession of the child for no more than five days.

If, at the end of the fifth day, no person entitled to possession of the child has assumed possession, the caseworker must file for a removal in court as though DFPS had conducted an emergency removal before obtaining a court order. See 5412 Conducting and Emergency Removal Before Obtaining a Court Order.

Texas Family Code, §262.110

5180 Taking Possession of a Missing Child

CPS March 2018

If a law enforcement officer discovers a missing child during a criminal investigation, and a person entitled to possession of the child is not immediately available, the officer may deliver the child to DFPS.

DFPS may retain possession of the child for up to five days.

If, at the end of the fifth day, no person entitled to possession of the child has assumed possession, the caseworker must file for a removal in court as though DFPS had conducted an emergency removal before obtaining a court order. See 5412 Conducting an Emergency Removal Before Obtaining a Court Order.

Texas Family Code, §262.007

5190 Hague Abduction Convention and Foreign Custody Court Orders

CPS March 2018

The Hague Convention on the Civil Aspects of International Child Abduction (The Hague Abduction Convention) is an international treaty designed to protect children who are abducted across international borders. In a lawsuit filed under the Hague Abduction Convention or to enforce a foreign child custody order, a person can request a warrant to take physical custody of the child.

Texas Family Code §152.311(c-1)

In this circumstance, the court can only place a child with a parent or family member who has significant ties to the court’s jurisdiction; for example, a relative who has lived in Texas for many years, or who has lived in Texas for fewer years but who is employed in Texas and is making mortgage payments.

If no one meeting this criteria is available as a safe interim placement, the court must provide for delivery of the child to DFPS, in the same way that DFPS takes possession of a child under Texas Family Code §262.007 (delivery to DFPS by law enforcement).

See 6740 Temporary CPS Custody Resulting from a Foreign Custody Order or a Hague Abduction Suit.

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