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5300 Additional General Issues and Requirements Relevant to CPS Legal Proceedings

5310 The Requirement for Staff to Elevate Certain Court Orders

5311 Purpose and Scope: Requirement to Elevate Certain Court Orders

CPS August 2014

CPS regional management, legal representatives, and, as applicable, staff of the DFPS state office in Austin, must receive timely notification about court orders that may create problems for the CPS program as a whole. For example, a court may issue an order directing an action that is in conflict with DFPS policy or DFPS's recommendation in the case, or may result in a threat to child safety.

At the time the order or directive is given by the court, the caseworker consults with the supervisor and the program director for guidance.

For specific steps to be taken when providing notification to upper management, see 5312 General Notice Requirements for Elevating Certain Court Orders.

The types of orders that require timely notification include, but are not limited to, the following:

  •  Court orders that directly contradict federal law or regulation, or state law or regulation, including orders to place a child in violation of Child Care Licensing’s rules on background checks

  •  Court-ordered placements that fit the criteria explained in 5313 Notice Requirements for Court-Ordered Placements in Unapproved Facilities

  •  Court-ordered actions (e.g., placements or dismissals) that DFPS believes may not be safe for the child, may not be in the best interest of the child, or may result in threats to child safety

  •  Court orders that place a child in violation of the Interstate Compact on the Placement of Children (ICPC), dismiss DFPS from a lawsuit in violation of the ICPC, or otherwise violate the ICPC, as explained in 5314 Court Orders That Violate the Interstate Compact on the Placement of Children

  •  Court orders that direct DFPS to use its appropriated funds in an unauthorized manner, such as an order to pay medical expenses for a child in detention, or to pay permanency care assistance or adoption assistance to persons who do not meet the eligibility criteria

  •  Court orders that contain findings that indicate DFPS failed in a case to take a type of action required by federal law or regulation, or state law or regulation, such as a finding that DFPS failed to make reasonable efforts to prevent the removal of the child or a finding that DFPS failed to make reasonable efforts to finalize a permanency plan

  •  Court orders that may set a precedent for other CPS cases that could be problematic for DFPS to comply with or the conflict with DFPS policy, including but not limited to:

  •  Court orders directing a specific service level for a child

  •  Standing orders specific to one jurisdiction

5312 General Notice Requirements for Elevating Certain Court Orders

CPS August 2014

In general, if a court order meets one of the criteria specified in 5311 Purpose and Scope: Requirement to Elevate Certain Court Orders, the caseworker notifies the supervisor and program director.

The caseworker must provide the notification on the same day that the caseworker becomes aware of the order, whether the order is given verbally from the bench or in writing. If the court order is in writing, the caseworker must provide a copy of the order. It is critical that the caseworker provide the notification as soon as possible in order to meet timelines for appealing the order if an appeal is necessary.

The program director reviews the order and elevates it to the program administrator to review to determine if legal should be notified.

The program administrator forwards the order to the managing attorney if the order requires immediate action by DFPS legal. The managing attorney will consult with DFPS legal at state office and the regional attorney if necessary.

Court orders that meet one or more of the criteria in 5311 Purpose and Scope: Requirement to Elevate Certain Court Orders, but for which no immediate legal action may be necessary, are elevated to the division administrator for the subject area the order concerns (such as placement, medical services, or permanency). The division administrator determines whether the matter needs to be addressed through other means in consultation with state office legal, if necessary.

For notification requirements specific to placements in unapproved facilities and orders in violation of the ICPC, see:

5313 Notice Requirements for Court-Ordered Placements in Unapproved Facilities; and

5314 Court Orders That Violate the Interstate Compact on the Placement of Children.

5313 Notice Requirements for Court-Ordered Placements in Unapproved Facilities

CPS August 2014

If the court orders DFPS to place a child in an unapproved facility, as defined below, the caseworker must notify the supervisor and program director.

The program director reviews the order and elevates it to the program administrator to review to determine whether legal should be notified. If the program administrator believes the order requires legal action, the program administrator forwards the order to the regional attorney and the division administrator of placement at the DFPS state office.

5313.15313.1 Definition of Unapproved Facility

CPS August 2014

For the purposes of this policy, an unapproved facility is a provider that:

  •  is not equipped to meet the child’s special needs;

  •  is not licensed by DFPS, but is subject to DFPS licensure requirements (placements that otherwise meet the child’s needs and are not required to be licensed by DFPS are not considered unapproved for the purposes of this policy. Examples of such placements include: placement with relatives or with fictive kin, such as persons who are close family friends, or placement in a facility that is licensed or approved by other state agencies);

  •  does not contract with DFPS;

  •  is requesting payment outside the child’s applicable foster care rate as set by HHSC; or

  •  is requesting or otherwise necessitating a child-specific contract.

5314 Court Orders That Violate the Interstate Compact on the Placement of Children

CPS August 2014

Court orders that violate the Interstate Compact on the Placement of Children (ICPC) include orders that:

  •  place a child in another state without the concurrence of the other state (that is, the receiving state) and approved ICPC paperwork;

  •  place a child in another state with a caregiver whose home screening was not approved;

  •  send a child into another state on visits that extend past 30 days; or

  •  dismiss DFPS from its lawsuit without the concurrence of the other (receiving) state.

See also 9000 Interstate Compact on the Placement of Children (ICPC) for information on compliance with the ICPC.

If a caseworker anticipates before a hearing that a court will order a placement that violates the ICPC, the caseworker’s supervisors and program director work closely with the managing attorney and the attorney representing DFPS to prepare a response before the court orders the placement.

If a judge orders a placement during a hearing that the caseworker or attorney did not anticipate, and the caseworker or attorney knows that the placement violates the ICPC, the attorney informs the judge on the record:

  •  that placing a child out-of-state without prior approval from the receiving state nullifies certain services, such as courtesy supervision and Medicaid for the child in that state; and

  •  that the receiving state ordinarily provides the services for an approved ICPC placement.

If the attorney representing DFPS is unfamiliar with the ICPC and its requirements, the caseworker explains DFPS’s objections to the attorney and asks the attorney either to:

  •  state the objections on the record; or

  •  ask that the caseworker be permitted to state the objections on the record.

For guidance on objecting to ICPC violations, see Appendix 5254: Tip Sheet on ICPC Violations.

If the court issues an order in violation of the ICPC in spite of DFPS’s objections, the caseworker must follow the notification requirements explained in 5312 General Notice Requirements for Elevating Certain Court Orders.

In addition, the caseworker must notify:

  •  the regional ICPC coordinator; and

  •  the Texas Interstate Compact Office (TICO), located at the DFPS state office.

  •  or both.

5320 Mediation

CPS December 2013

Mediation may occur at any point in a CPS lawsuit, but it arises most commonly before a final order is issued. See 5570 Mediation and Other Forms of Dispute Resolution.

5330 Special Court Approvals and Notifications

5331 Obtaining Approval From the Court for Out-of-State Placements and Reunification

CPS December 2013

The caseworker of a child in DFPS conservatorship must obtain written approval from the court or the court’s designee before:

  •  placing the child out of state; or

  •  returning the child to the family.

If the court gives oral approval but declines to give written approval for either of the actions above, the caseworker must advise the court in writing of his or her understanding that the court has given approval.

DFPS Rules, 40 TAC §700.1106

If the caseworker is unsure about how to advise the court, the caseworker consults with the attorney representing DFPS. See also Appendix 5254: Tip Sheet on ICPC Violations for related suggestions.

5332 Required Notification to the Court

CPS December 2013

Unless the court indicates that it does not want to be notified, the caseworker must notify the court or the court’s designee about actions and events involving a child in DFPS conservatorship.

5332.15332.1 Notifying the Court When a Child Is or May Be Harmed

CPS December 2013

The caseworker must notify the court when a child is, or may be, harmed; for example:

  •  when a child develops a serious or life-endangering illness;

  •  when a child dies;

  •  when consideration is being given to withdrawing the child from life-support systems or withholding medically indicated treatment;

  •  when a child is abused or neglected in a foster home, an adoptive home, a relative’s home, or the child’s own home;

  •  when DFPS loses contact with the child because the child has run away or been kidnapped by a parent or relative; or

  •  when a child decides to place himself or herself in an independent living arrangement.

DFPS Rules, 40 TAC §700.1107

5332.2 Notifying the Court About a Child Who Is Without a Placement

CPS December 2013

If a child is without a placement, the caseworker must notify the court in which the case is filed no later than the next business day after the child is placed in a temporary alternative arrangement.

Notification is required, even if the court has indicated that it does not want to be notified of changes in the child’s status.

Texas Family Code §264.107(g)

For additional guidance on the provision of care, see 4152.1 Plans for Children When Placement Is Unavailable.

5332.3 Notifying the Court About a Change of Jurisdiction

CPS December 2013

If a child leaves the court’s geographic jurisdiction, the caseworker must notify the court.

Notification is not required if there is no motivating reason, such as a judge expressing an interest in a particular case.

DFPS Rules, 40 TAC §700.1107

5332.4 Notifying the Court When Subsequent Removal

CPS December 2013

If DFPS finds it necessary to remove a child who has been returned to the parents and place the child in foster or substitute care, the caseworker must notify the court.

DFPS Rules, 40 TAC §700.1107

5332.5 Notifying the Court About a Designated Medical Consenter

CPS December 2013

If DFPS is authorized by the court to consent to the medical care of a child in DFPS conservatorship, the caseworker must provide the court with the name of the person designated by DFPS to consent to the child’s medical care.

See 11118 Notifying the Court of the Designated Medical Consenter.

Texas Family Code §266.004(c)

5340 Indian Child Welfare Act (ICWA)

CPS December 2013

If a DFPS lawsuit involves a Native American child, the Indian Child Welfare Act (ICWA) applies and the legal requirements change dramatically.

The legal requirements related to ICWA are discussed primarily in 5840 The Indian Child Welfare Act (ICWA); however, while ICWA requirements do not apply in every case, it is critically important that the caseworker inquire about Native American history in every case.

The only way to determine whether a child may be a Native American child is to ask available parents, relatives, and children who are old enough to be interviewed whether there is any family history connected to a Native American tribe. The caseworker documents the responses by individual family members, whether a Native American history is reported or denied.

If there is any indication that a child may have a family member or ancestor affiliated with a tribe, the caseworker follows ICWA policies at 5840 The Indian Child Welfare Act (ICWA).

5350 Seeking Child Support for Children in Substitute Care

CPS December 2013

Even when DFPS has been appointed as temporary or permanent managing conservator of a child, the parents still have support obligations to their child. DFPS, therefore, has the legal authority and obligation to seek child support and medical support from the parents.

5351 Requesting Child Support From the Parents of Children in DFPS Conservatorship

5351.1 Requirements for Requesting a Court to Order Parents to Provide Support

CPS December 2013

In CPS cases involving a suit affecting but not terminating parental rights, DFPS must ask the court to order the parents to provide child support and health insurance.

If the court terminates parental rights, DFPS may request that the parents be ordered to provide support.

Texas Family Code, §154.001

Although it may appear that the parent is financially unable to provide support, the court is the entity that evaluates the parent’s ability to pay. Even a small amount of support allows the parent to share the responsibility of providing for the child’s care and ensures some level of parental involvement. The court may or may not order support as requested, but it is duty of DFPS to make the request.

The caseworker must inform the parents that DFPS will request that the parents pay child support and health insurance.

DFPS Rules, 40 TAC §700.1108

5351.2 DFPS’s Right to Review Child Support Payments

CPS December 2013

DFPS is entitled to receive all child support paid for a child, as of the date that the child is placed in substitute care.

Texas Family Code §264.109

DFPS Rules, 40 TAC §700.330

If the child’s caretaker is already receiving court-ordered support for the child, DFPS must ask the court to make the child support payable to DFPS when DFPS is appointed managing conservator.

If DFPS is appointed temporary managing conservatorship of a child who is ultimately placed with relatives or close family friends (a kinship placement) and the court orders that the child support be directly paid to the caretaker, the caseworker:

  •  informs the court that DPFS will pass the support to the care taker; and

  •  asks the court to make the child support payable to DPFS.

If child support is not made payable to DFPS during temporary conservatorship and the child needs to be moved to a different placement, DFPS must obtain another court order to ensure that the child support is paid to DFPS or to the child’s new caregiver.

If the court orders the parents to pay child support to DFPS in a conservatorship case, DFPS eligibility staff process the court orders in the IMPACT system and the case is automatically referred to the Office of the Attorney General’s (OAG’s) Child Support Division.

For specifics, see 5352 Referring Child Support Cases to the Office of the Attorney General. For the process followed by the eligibility specialist, see Appendix 5532: Child Support: Instructions and Troubleshooting for Foster Care Eligibility Specialists.

5351.3 Requirement to Ask the Court to Modify Support Orders When a Child Is Reunified With the Parents

CPS December 2013

If a parent has been ordered by a court to pay child support to DFPS and the child is going to be reunified with that same parent, the caseworker must request that the court revise the child support order to relieve the parent of the support obligation to DFPS while the child is living with that parent.

If the reunification is unsuccessful and the child is returned to foster care, the caseworker must request that the court revise the child support order to reinstate the child support payments to DFPS.

5352 Referring Child Support Cases to the Office of the Attorney General

CPS December 2013

When a court orders a parent to pay child support to DFPS, DFPS foster care eligibility staff must refer the case to the Office of the Attorney General’s (OAG’s) Child Support Division for enforcement of the order.

Both legal parents must be included in the referral, even if a parent is missing or living in another state. If a parent has more than one child in foster care, the parent must be included in each child’s referral.

DFPS Rules, 40 TAC §700.1109

5353 Ongoing DFPS Responsibilities in a Child Support Case

5353.1 Contact With the OAG
5353.11 Making the OAG Aware of Issues That Could Affect the Collection of Child Support

CPS December 2013

DFPS must keep the Office of the Attorney General’s (OAG’s) Child Support Division informed of issues that could affect the enforcement of a court order requiring a family to pay child support to DFPS.

Changes that could affect a family’s ability to pay include the death or incapacity of a parent or any other change in the family’s situation that affects the collection.

Completing Form 1702

The child’s caseworker notifies the foster care eligibility specialist about changes affecting a family’s ability to pay child support by completing Form 1702 Foster Care Case Referral to the Office of the Attorney General. The caseworker explains the family’s situation in the Special Notes and Comments About the Case section of the form.

Upon receiving Form 1702 from the caseworker, the eligibility specialist reviews the form and, once it is correct, sends it to the OAG’s Child Support Division. For the process followed by the eligibility specialist, see Appendix 5532: Child Support: Instructions and Troubleshooting for Foster Care Eligibility Specialists.

5353.12 Requesting Information on a Parent’s Payment of Child Support in Conservatorship Cases

CPS December 2013

To obtain information about a parent’s payment of child support:

  •  the caseworker contacts the child’s eligibility specialist; and

  •  the eligibility specialist contacts the child support program specialist at the DFPS state office.

The program specialist reports the payment information back to the eligibility specialist, who then provides it to the child’s caseworker.

Having payment information enables the DFPS attorney to answer any questions that the court may have or request that the court issue a certain order.

5353.13 Communicating With the OAG to Facilitate the OAG’s Enforcement of a Court Order to Pay Child Support to DFPS

CPS December 2013

Once a court orders a parent to pay child support to DFPS, the Office of the Attorney General’s (OAG’s) Child Support Division enforces the order. If the parent fails to pay the support obligations, DFPS works with the OAG to resolve the issue.

DFPS Rules, 40 TAC §700.1109

If the OAG’s Child Support Division decides to enforce the obligation through court action, the OAG’s child support attorney contacts the child’s caseworker either:

  •  by sending Form 1701 Child Support, AFDC Foster Care, and AFDC/Medicaid Case Information Exchange to the child’s foster care worker; or

  •  by contacting the caseworker by phone, mail, or email.

When the child’s caseworker receives Form 1701 or is otherwise contacted by the OAG, he or she informs the attorney representing DFPS that the OAG has proposed a court action.

5353.2 When Relatives or Caretakers Are Not Receiving Court-Ordered Child Support

CPS December 2013

To find out why relatives or caretakers are not receiving court-ordered child support for children in their care:

  •  the caseworker contacts the eligibility specialist; and

  •  the eligibility specialist contacts the child support program specialist at the DFPS state office.

To correct the problem on the OAG system (which facilitates the payment to the relative or caretaker), the DFPS eligibility specialist works with the child support program specialist and the caseworker to make any necessary corrections. For the process followed by the eligibility specialist, see Appendix 5532: Child Support: Instructions and Troubleshooting for Foster Care Eligibility Specialists.

5354 Dismissal of a DFPS Case and Closing a Child Support Case

5354.1 Child Support and Dismissal Orders

CPS December 2013

When DFPS is being dismissed from a conservatorship case for which child support was ordered, it is important that the dismissal order specify how to handle the child support after DFPS is dismissed.

If the court dismisses the case without referencing the child support, the parent is not obligated to pay:

  •  any past due child support to DFPS; or

  •  any future child support payments to the person who will have permanent managing conservatorship of the child.

To avoid this situation, the caseworker takes the following steps:

  •  Before the case is dismissed, the caseworker contacts the child’s foster care eligibility specialist to request an accounting from the Office of the Attorney General (OAG) about any past child support payments (arrears) or interest owed to DFPS. See 5353.12 Requesting Information on a Parent’s Payment of Child Support in Conservatorship Cases.

  •  If arrears are owed, the caseworker requests either that the dismissal order state that the parents make payments to DFPS until the arrears are paid in full, or that the arrears be waived. See 5354.12 Waiving Child Support Owed to DFPS.

  •  Regardless of whether the person who takes permanent managing conservatorship of the child is a relative or not, the caseworker ensures that the court order states that any future child support payments be made to that person and states the amount to be paid.

      The caseworker must inform the new caretaker that DFPS does not assist with any enforcement action and that to enforce future child support payments the caretaker must contact the OAG’s Child Support Division. The OAG provides child support services for former CPS clients. The services include establishing, enforcing, and modifying child support orders. See 5354.3 Helping a Caretaker Obtain Child Support After DFPS Conservatorship Is Dismissed.

5354.11 Dismissal of Child Support Orders Following Termination of Parental Rights

CPS December 2013

In a court order that terminates parental rights, the judge can order that the parents pay child support to DFPS, even though the parents no longer have their parental rights, as long as the child is in substitute care.

If the court does not order the parents to pay child support, the court must also issue a finding that:

  •  the obligation to pay child support is satisfied; or

  •  any past child support that was in arrears is waived.

5354.12 Waiving Child Support Owed to DFPS

CPS December 2013

Under some circumstances, DFPS can waive arrears owed to the state.

If the caseworker believes that it is in the best interest of the child to waive any state-owed arrears for child support, the caseworker:

  •  obtains the payment history for the case, in accordance with 5353.12 Requesting Information on a Parent’s Payment of Child Support in Conservatorship Cases; and

  •  consults with the caseworker’s supervisor and the attorney representing DFPS to determine whether waiving arrears is appropriate.

If a child is in Title IV-E-funded foster care, DFPS cannot waive the portion of the child support that corresponds to the federally funded portion of the child’s foster care payments.

Arrears That Are Waived

If the arrears are waived, the caseworker must inform the Office of the Attorney General (OAG) about the decision.

Arrears That Are Not Waived

If the arrears are not waived, the caseworker asks the court to issue an order that includes a payment schedule that the parent must follow, so that the child support obligation is paid.

Texas Family Code §§101.024 and 154.001

5354.2 Closing the Child Support Case in the OAG System

CPS December 2013

DFPS eligibility staff must close a DFPS child support case in the OAG automated system when:

  •  a court order dismisses DFPS legal conservatorship; or

  •  a court terminates parental rights, unless the court has ordered that the parents continue to pay child support to DFPS despite the termination of parental rights.

For the process followed by the eligibility specialist, see Appendix 5532: Child Support: Instructions and Troubleshooting for Foster Care Eligibility Specialists.

It is important that the OAG case be closed as soon as possible so that:

  •  payments are made to the right entity; and

  •  any subsequent caregiver can open his or her own child support case.

5354.21 Initiating the Closing of a Child Support Case in the OAG System

CPS December 2013

To initiate the closing of a child support case, the child’s caseworker sends the child’s DFPS eligibility specialist a copy of the written court order or decree:

  •  dismissing DFPS legal conservatorship; or

  •  terminating parental rights, appointing a managing conservator other than DFPS, or both.

The order or decree is sent within seven to 10 days of receiving the original.

5354.22 Determining Whether a DFPS Child Support Case Has Been Closed in the OAG System

CPS December 2013

To determine whether a case has been closed, the child’s caseworker submits a request through the DFPS eligibility specialist.

The eligibility specialist contacts the program specialist for child support at the DFPS state office.

The program specialist notifies the eligibility specialist about whether the child support obligation is ended.

Even when the order ending the child support obligation has been sent to the Office of the Attorney General (OAG), certain factors may affect the closing of cases in the OAG system (for example, parents who are in arrears on their child support obligation).

5354.23 Factors That Affect the Closing of a DFPS Child Support Case in the OAG’s Automated System

CPS December 2013

Even when DFPS eligibility staff have completed the steps for closing a DFPS child support case, various factors may prevent the Office of the Attorney General (OAG) from closing the case, as shown in the following examples.

  •  If a parent owes more than $500 in past-due child support to DFPS, and the arrears have not or cannot be waived by DFPS, the OAG cannot close the case. In this instance, the OAG may ask DFPS for any locating information on the parents, and DFPS staff must cooperate with the request for information.

  •  If a youth is no longer part of a parent’s case because the youth has become an adult, but younger siblings remain on the case, the OAG cannot close the case.

In these circumstances, the OAG officer or technician cannot close the DFPS child support case in the automated system, even if DFPS has been legally dismissed from the case and has taken all of the steps necessary to close the case.

5354.24 Criteria for Closing a Child Support Case in the OAG Automated System

CPS December 2013

For a case to be eligible for closure, it must meet at least one of the following criteria:

  •  Regardless of the child’s age, there is no longer a current court order requiring child support and any support in arrears totals less than $500, or collection of the arrears is unenforceable under state law.

  •  The parent is deceased and no further action, including a levy against the estate, can be taken.

  •  Paternity cannot be established.

5354.3 Helping a Caretaker Obtain Child Support After DFPS Conservatorship Is Dismissed

CPS December 2013

After a court dismisses DFPS as a child’s conservator and places the child with a person other than the child’s parents, the person with whom the child is placed may ask the Office of the Attorney General (OAG) to provide child support services. The OAG’s services include establishing, enforcing, and modifying court orders for child support.

To help the caretaker request services, the child’s caseworker does as follows:

  •  Informs the caretaker that the child support that was ordered to be paid to DFPS is not automatically transferred to the caretaker, unless the dismissal order specifically states that the caretaker must receive child support from the parents.

  •  Informs the caretaker that enforcement of child support is handled through the OAG’s Child Support Division. The caretaker can apply online at Child Support Interactive, in person at the local OAG Child Support Office, or over the phone. The caretaker can also request an application for services by calling the OAG’s toll-free telephone number at (800) 252-8014. An applicant who is deaf or hard of hearing can call TTY (800) 572-2686 (512) 460-6417 or (512) 460-6399 (voice).

  •  Provides the caretaker with a copy of the court’s final order for the caregiver to give to the OAG, if possible.

5360 Establishing Paternity

5361 Court Ordered Testing When Paternity Has Not Been Established

5361.1 Referring Cases to the Office of the Attorney General for Paternity Testing

CPS December 2013

The Office of the Attorney General (OAG) is responsible for paternity testing.

When the court orders paternity testing in a foster care case, the child’s caseworker must follow the procedures established between the regional DFPS office and the local office of the OAG’s Child Support Division. Local coordination between DFPS and the OAG ensures that paternity testing is scheduled and conducted in a timely manner.

To refer a case to the OAG for paternity testing, the caseworker prepares a manual referral packet. (The automated referral process refers cases for enforcement of child support only, not paternity services.)

The referral packet consists of:

  •  Form 1702 Foster Care Case Referral to the Office of the Attorney General; and

  •  the court order for paternity testing.

The caseworker must complete Form 1702 as thoroughly as possible and check the box for Paternity Testing Ordered in Section I, Reason for Referral.

5361.2 Paternity Testing by the OAG and Court Ruling

CPS December 2013

The Office of the Attorney General (OAG):

  •  opens a paternity case;

  •  schedules the parties for testing;

  •  provides the child’s caseworker with the appointment date for the testing of the parent or the parents and the child; and

  •  sends the original test results to the caseworker who requested the paternity test.

The casework ensures that the attorney representing DFPS:

  •  has the original test results; and

  •  requests a court order consistent with the test results.

After the court has ruled on the alleged father’s paternity, regardless of whether the individual was excluded or not excluded, the child’s caseworker must forward the court order or the decree from that hearing to the appropriate local OAG office.

5362 Court Ordered Testing When Paternity Has Been Established But Is Questioned

CPS December 2013

The Office of the Attorney General (OAG) does not schedule genetic testing when parentage has already been established by either a properly executed and filed Acknowledgement of Paternity (AOP) or a court order, unless the court makes certain judicial findings.

See:

5362.1 Acknowledgment of Paternity

5362.2 Court Order Establishing Paternity

5362.1 Acknowledgment of Paternity

CPS December 2013

Even if an Acknowledgement of Paternity (AOP) document has been properly executed and filed, there may still be a question about the paternity of the child. In that case, the court may order genetic testing on the child and parent or parents.

The OAG does not conduct paternity testing if there is an AOP form on file, unless the court issues an order that includes:

  •  a finding that the evidence indicates there is a material mistake of fact regarding the circumstances surrounding the AOP; and

  •  an order for genetic testing to properly determine the child’s paternity.

If the court order does not include such findings, the caseworker contacts the regional DFPS attorney to determine whether to obtain such a court order.

5362.2 Court Order Establishing Paternity

CPS December 2013

Even though there is a court order that establishes paternity, there may still be a question about the paternity of the child. In that case, the court may order genetic testing on the child and the parent or parents.

The OAG does not conduct paternity testing if there is a court order establishing paternity, unless the court issues an order that:

  •  includes a finding that there is prima facie evidence (that is, the basic necessary evidence) that the previous order of paternity may be vacated under Texas Rules of Civil Procedure 329b(f) and that vacating the previous order is in the child’s best interest; and

  •  includes an order for genetic testing to properly determine the child’s paternity.

If the court order does not include such findings, the caseworker contacts the regional DFPS attorney to determine whether to obtain such a court order.

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