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5400 Removal of a Child and Related Proceedings and Requirements

5400.1 Purpose and Scope: Removal of a Child and Related Proceedings and Requirements

CPS December 2013

The items in Section 5400 explain the court-related requirements for removing a child from a home and the actions the caseworker takes following a removal, including actions related to removal orders, adversary hearings, aggravated circumstances, and Baby Moses cases.

For information about the legal case following the adversary hearing, see Section 5500 Hearings Required by Chapter 263 and Final Orders for Children Under 18.

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

CPS December 2013

Except in cases involving exigent circumstances DFPS must obtain a court order before removing a child. The Texas Family Code allows DFPS to obtain a court order authorizing a child to be removed from his or her parents or caretaker in three circumstances.

The caseworker determines which circumstance applies.

After determining the basis for removal, the caseworker obtains further guidance by referring to the items under one of the following:

5411 Obtaining a Court Order Before Conducting an Emergency Removal

5412 Conducting an Emergency Removal Before Obtaining a Court Order

5413 Conducting a Nonemergency Removal

In some cases, if DFPS plans to take legal action to affect a parent’s rights, the child may already be placed with a relative. In this type of legal removal, the child does not physically change placements and the removal is considered a constructive removal.

5411 Obtaining a Court Order Before Conducting an Emergency Removal

5411.1 Standard for Obtaining a Court Order Before Conducting an Emergency Removal

CPS December 2013

Before conducting an emergency removal, DFPS must submit evidence sufficient to satisfy a person of ordinary prudence and caution that:

  •  there is an immediate danger to the physical health or safety of the child, OR the child has been the victim of neglect or sexual abuse;

  •  remaining in the home would be contrary to the child’s welfare;

  •  there is no time to hold a full adversary hearing, without jeopardizing the physical health or safety of the child; and

  •  reasonable efforts, consistent with the circumstances and providing for the safety of the child, have been made to prevent or eliminate the need for removal

Texas Family Code §262.101

5411.2 Basic Process for Obtaining a Court Order Before Conducting an Emergency Removal

CPS December 2013

Once the caseworker determines that an emergency removal supported by a court order is necessary and the caseworker receives approvals, the caseworker takes the following steps:

  •  Immediately asks the attorney who represents CPS to file a petition seeking relief and requesting an emergency hearing.

  •  Follows 5421 Requirements for Completing a Removal Affidavit and prepares an affidavit with evidence sufficient to satisfy the standard explained in 5411.1 Standard for Obtaining a Court Order Before Conducting an Emergency Removal.

  •  Participates in the ex parte emergency hearing as a witness, if needed (that is, in a hearing attended by only one party; in this case CPS).

  •  Conducts the removal.

  •  Prepares for the adversary hearing, which must take place no more than 14 calendar days after the child was removed, unless the court orders an extension. At the hearing, the child’s parents or caretakers have the opportunity to challenge the evidence that DFPS is relying on to support the emergency removal. See 5430 Adversary Hearing.

See also Appendix 5400: Conservatorship Timeline.

5412 Conducting an Emergency Removal Before Obtaining a Court Order

5412.1 Standard for Conducting an Emergency Removal Before Obtaining a Court Order

CPS December 2013

Only in limited circumstances can DFPS remove a child first and then go to court to request a court order.

DFPS cannot remove a child without a prior court order, unless DFPS can show all of the following:

  •  The child is in immediate danger of physical or sexual abuse.

  •  It is contrary to the welfare of the child to remain in the home.

  •  Reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal.

Texas Family Code §262.104

If a child is removed on this basis, the court must ultimately return the child to the parent, unless DFPS provides sufficient evidence to prove to the court that:

  •  there is a continuing danger to the physical health or safety of the child if the child is returned home, OR that there is evidence of sexual abuse and that child is at substantial risk of future sexual abuse;

  •  it is contrary to the child’s welfare to remain in the home; and

  •  reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate need for removal.

Texas Family Code §262.107

In deciding whether there is a continuing danger to the physical health or safety of the child, the court may consider whether the household to which the child would be returned includes a person who has:

  •  abused or neglected another child in a manner that caused serious injury to or the death of the other child; or

  •  sexually abused another child.

Accordingly, the caseworker must include in the removal affidavit any critical information from the family’s history that would support a conclusion of either serious abuse or neglect or prior sexual abuse by a person in the household. See 5421 Requirements for Completing a Removal Affidavit.

5412.2 Basic Process for Conducting an Emergency Removal Before Obtaining a Court Order

CPS December 2013

Once the caseworker determines that it is necessary to make an emergency removal before obtaining a court order, and the caseworker receives the approvals, the caseworker takes the following steps:

  •  Takes possession of the child.

  •  Immediately asks the attorney representing DFPS to file a petition seeking relief and requesting an emergency hearing. The caseworker must make the request immediately to enable the court to hold the emergency hearing on or before the first workday after the child is removed. See Texas Family Code §262.106(a).

  •  Follows 5421 Requirements for Completing a Removal Affidavit and prepares an affidavit with evidence sufficient to satisfy the standard explained in 5412.1 Standard for Conducting an Emergency Removal Before Obtaining a Court Order.

  •  Participates in the ex parte emergency hearing as a witness, if needed (that is, in a hearing attended by only one party; in this case CPS). The hearing must take place on or before the first working day after the child is taken into possession. If the court is unavailable on the first working day, the hearing must take place on the next available working day, but no later than the third working day after the child is taken from the home.

  •  Conducts the removal in accordance with 5412.1 Standard for Conducting an Emergency Removal Before Obtaining a Court Order and the court’s order for removal.

  •  Prepares for the adversary hearing, which must take place no more than 14 calendar days after the child was removed, unless the court orders an extension. At the adversary hearing, the child’s parents or caretakers get the opportunity to challenge the evidence that DFPS is relying on to support the emergency removal. See 5430 Adversary Hearing.

Also see Appendix 5400: Conservatorship Timeline.

5412.3 Process When an Emergency Hearing Is Not Held Within the Required Time Frame

CPS December 2013

If an emergency hearing cannot be held within the required time limits, CPS must return the child and provide whatever services it can in the home to protect the child from further harm.

DFPS Rules, 40 TAC §700.1103

Before Returning the Child

Before returning the child, the caseworker must notify the supervisor and the program director and explain the reasons why the child will be returned.

If the Child Is in Danger

If the child is in danger of further harm in the home, the program director contacts the county or district attorney, in writing, to discuss legal options.

The written notice must:

  •  clearly describe the danger to the child;

  •  may include a request for a new emergency removal, if needed; and

  •  be approved by the program administrator.

5413 Conducting a Nonemergency Removal

5413.1 Standard When Conducting a Nonemergency Removal

CPS December 2013

If the circumstances allow, before removing a child DFPS must give notice about the removal  hearing to the parents or caretaker and submit sufficient evidence to prove to the court that:

  •  it is contrary to the child’s welfare to remain in the home; and

  •  reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal.

Texas Family Code §262.113

5413.2 Basic Process When Conducting a Nonemergency Removal

CPS December 2013

Once a caseworker determines that removing a child is a nonemergency and receives approvals, the caseworker takes the following steps:

  •  Asks the attorney representing DFPS to file a petition seeking relief and requesting a hearing.

  •  Follows 5421 Requirements for Completing a Removal Affidavit and prepares an affidavit with evidence sufficient to satisfy the standard for a nonemergency removal.

  •  Notifies the parents (or other party from whom CPS seeks to remove the child) about the hearing, once the hearing is scheduled by the court.

  •  Participates in the hearing as a witness. At the hearing, the child’s parents have the opportunity to challenge the evidence that DFPS is relying on to support the requested removal.

  •  Conducts the removal.

5414 Obtaining a Waiver of the Requirement to Provide Notice of Removal

CPS December 2013

At the initial hearing, the court may waive the requirement to provide notice of a removal if DFPS documents that:

  •  the person to be notified could not be located;

  •  the case meets the criteria for a Baby Moses case under Subchapter D of Chapter 262, Emergency Possession of Certain Abandoned Children (see also 2351 Baby Moses); or

  •  there is other good cause for not providing notice.

Texas Family Code §262.109(a),(b),(d)

5420 How a Child Protection Lawsuit Begins

CPS December 2013

Regardless of which standard for removal applies, DFPS begins a suit affecting the parent-child relationship (SAPCR) by filing a petition.

The petition (sometimes called a pleading) tells the court, the parents, and any other party, that DFPS:

  •  is requesting the authority to care for a child temporarily; and

  •  may request termination of parental rights, if efforts to reunify the family are not successful.

The process of preparing to file a suit affecting the parent-child relationship requires close cooperation between the caseworker and the attorney representing DFPS.

The caseworker drafts an affidavit that provides the facts and evidence. The attorney representing DFPS uses the facts and evidence in the affidavit to show the court that DFPS is entitled to the specific court order that DFPS is requesting;

The attorney also generally:

  •  prepares the petition; and

  •  files the petition and affidavit with the court.

5421 Requirements for Completing a Removal Affidavit

CPS December 2013

A court cannot grant a removal order unless DFPS offers sufficient evidence. The evidence that is required depends on the type of removal requested. See 5410 Types of Court Orders and the Process for Obtaining a Court Order for Removal of a Child.

In addition to submitting an affidavit, the caseworker may also testify at the hearing; however, if properly prepared, the affidavit contains enough facts, based on personal knowledge, to demonstrate that removal is justified under the applicable standard.

If the affidavit does not contain enough information to justify removal, there may be important information that the caseworker failed to include, or more investigation that needs to be done, or there may not be a legal basis for removal.

Unless the local court requires otherwise, the caseworker uses the Sample Removal Affidavit provided under the Affidavit heading in The Texas Practice Guide for Child Protective Services Attorneys.

This format is designed to help the caseworker prepare an affidavit that is complete, concise, and organized. If an affidavit is missing vital information, is not based on personal knowledge, is confusing, or contains conflicting information, it may adversely affect the case and the caseworker may find cross-examination to be extremely difficult.

Most attorneys opposing DFPS attempt to undermine a caseworker’s credibility and conclusions on cross-examination. A well-written affidavit is easier to defend. Most importantly, a well-written affidavit makes clear the reasons that the court action is necessary to protect a child.

5422 Essential Information for the Petition

CPS December 2013

To prepare a petition, the attorney representing DFPS must have basic information about a case.

Local procedures and forms for conveying this information vary, but the caseworker must be prepared to provide:

  •  detailed information about the children, parents, and other members of the household;

  •  the reasons for removal;

  •  the efforts made to locate missing persons; and

  •  any specific information requested by the attorney handling the case.

To provide accurate names and identifying information for the petition, the caseworker asks the eligibility specialist to provide a screen print of the birth record that the specialist has obtained from the Bureau of Vital Statistics. See 1520 Obtaining Certified Birth Certificates and Screen-Printing Birth Records.

The caseworker must pay specific attention to gathering and sharing information related to the child’s Native American status and whether there has been a custody lawsuit in the family’s past.

The caseworker must also gather and provide all of the information necessary to help process-servers locate individuals who are entitled to be served with a citation notifying them about the petition for removal of the child and about DFPS’s long terms plans for the child. To do so, the caseworker completes Form 1744 Identifying Data for Service of Citation. See 5220 Due Diligence and Service of a Citation.

5430 Adversary Hearing

5431 Purpose of the Adversary Hearing

CPS December 2013

The purpose of the 14-day full adversary hearing is to:

  •  determine whether the child’s emergency removal was warranted;

  •  determine whether continued placement outside of the home is required; and

  •  obtain temporary orders for the protection of the child pending resolution of the suit, if continued placement is required.

As the party asking to restrict a parent’s rights to a child, DFPS has the burden to prove the necessity for the removal and for continued conservatorship of the child.

5432 Requirements for the Adversary Hearing

5432.1 Time Frame for the Adversary Hearing

CPS December 2013

A full adversary hearing must be held within 14 days of taking a child into possession or filing of lawsuit, unless:

  •  the child has already been returned to the home; or

  •  the court has extended the date of the adversary hearing.

Texas Family Code §262.201(a)

Texas Rules of Civil Procedure

5432.2 Standard of Proof in an Adversary Hearing

CPS December 2013

In an adversary hearing, DFPS must rebut the presumption that placing the child with a parent or other person presently entitled to possession is in the child’s best interest.

Specifically, DFPS must submit evidence sufficient to satisfy a person of ordinary prudence and caution that:

  •  there was a danger to the physical health or safety of the child caused by an act or failure to act on the part of the parent or the person entitled to possession of the child, and that for the child to remain in the home is contrary to the welfare of the child;

  •  the urgent need for protection required immediate removal and that reasonable efforts consistent with the circumstances and with providing for the safety of the child were made to eliminate or prevent removal; and

  •  despite reasonable efforts to eliminate the need for removal, there is a substantial risk of continuing danger to the child if the child is returned to the home.

Texas Family Code §262.201(b)

In determining whether there is a continuing danger to the physical health or safety of the child, the court may consider whether the household to which the child would be returned includes a person who:

  •  abused or neglected another child in a manner that caused serious injury to or the death of the other child; or

  •  sexually abused another child.

Accordingly, it is important that the caseworker submit sufficient evidence of the family’s history to support a conclusion of either serious abuse or neglect or prior sexual abuse by a person in the household.

DFPS must also either:

  •  place the child with the child’s noncustodial parent or a relative; or

  •  prove that it is not in the child’s best interest to be placed with a noncustodial parent or relative.

Unless there is a prior court order that limits a parent’s rights, or DFPS can demonstrate that placement with a noncustodial parent threatens the child’s safety, a noncustodial parent has rights of possession of the child that are superior to that of other potential caregivers.

Accordingly, it is important for the caseworker to submit evidence that shows whether placing the child with a noncustodial parent or relative:

  •  is or is not safe; and

  •  is or is not in the child’s best interest.

5432.3 Requesting Services and Participation at the Adversary Hearing

CPS December 2013

Orders Regarding Parents

DFPS is required to work jointly with a child’s parents to develop a service and visitation plan.

For this reason, and because the adversary hearing is conducted early in the legal case, the caseworker recommends only that the court order the services needed for the parents to address the safety threats that resulted in the child entering substitute care. The caseworker does not recommend services beyond that before having time to develop a service plan jointly with the parents.

Recommendations for services must instead focus on interventions that either:

  •  assess the parents’ protective capacities; or

  •  enhance diminished protective capacities that prevent the parents from safely parenting the child in the home.

If additional concerns arise:

  •  the caseworker includes services to address diminished protective capacities in the family’s service plan and in future court hearings; and

  •  DFPS recommends the services be entered as an order of the court.

See 5520 The Family’s Service and Visitation Plans: Filing and Review Requirements.

Orders in General

If the court finds that the standard for naming DFPS as temporary managing conservator (TMC) is met at the adversary hearing, the court may issue appropriate orders, including orders regarding services to address the parents’ protective capacities, as described in this item.

The court may also issue other orders pertaining to the child and basic issues at the beginning of the case, such as the following:

  •  Child support to be paid to DFPS by the parents

      (Although child support is not a safety driven issue, the law requires that child support always be requested. If a parent is truly indigent, the caseworker requests that the parent support the child in some way, such as by providing clothing.);

  •  Visitation by parents (see 5432.4 Temporary Visitation Schedule)

  •  Visitation by siblings

  •  Visitation by relatives or others who are important to the child

  •  Home assessments conducted on persons requesting that the child be placed with them

  •  Medical and psychological evaluations of the child, followed by the services indicated as appropriate by the evaluations

  •  Appointment of a medical consenter, if one has not already been appointed

  •  Restrictions on the type of placement required to meet a child’s individual needs

  •  Assessments of the parents, to aid in development of the family’s case plan

  •  Temporary injunctions against other parties; such as, prohibiting removal of the child from the jurisdiction, prohibiting unsupervised visits, and prohibiting discussions with the child regarding testimony in pending criminal action

  •  Appointment of representatives of the child (such as an attorney, a court-appointed special advocate, and a guardian ad litem)

  •  Payment of discovery and litigation expenses for the child’s representation

  •  Submission of the placement resource form (Form 2625 Child Caregiver Resource) to DFPS, if it has not been previously provided by the parents

For more information on preparing for and participating in the adversary hearing, see Appendix 5432.3: Preparing for and Participating in the Adversary Hearing: Tips and Information.

5432.4 Temporary Visitation Schedule

CPS December 2013

A temporary visitation schedule is required early in a case for each child whose goal is reunification. The caseworker develops the schedule using Form 2640 Temporary Visitation Schedule, and develops it with the child’s parents to the extent possible.

A schedule is not required for a child if:

  •  the court has made or will make a finding of aggravated circumstances; or

  •  the child has been abandoned without identification.

The caseworker must be prepared to present the temporary visitation schedule at each adversary hearing, whether the hearing follows an emergency ex parte removal, or the child has not yet been removed and DFPS is seeking approval of a nonemergency removal.

The temporary schedule remains in effect until the visitation plan is developed. See 5524 Visitation Plan: Filing and Court Review.

Texas Family Code §262.115

5432.5 Designation of an Education Decision Maker and Notification of a Surrogate Parent

CPS December 2013

Either at the adversary hearing or no later than five days following the adversary hearing, DFPS must provide the court with the name and contact information for each person that DFPS designates to make educational decisions on behalf of the child.

Texas Family Code, §263.004

The caseworker complies with the requirement by filing a completed Form 2085-E Education Decision-Maker at the adversary hearing.

A completed Form 2085-E includes the name and contact information for any surrogate parent assigned to make decisions regarding special education services, if applicable, and if known at that time.

Any time that the following occur, the caseworker files an updated form with the court:

  •  A new person is designated as the person who can make educational decisions.

  •  A new person is designated as the surrogate parent.

  •  A surrogate parent is appointed for the first time.

The updated form also must be filed no later than the fifth day after the person is designated or assigned.

Exceptions to the Requirement

The only exception to the requirement of designating a person to make educational decisions is if the court order limits DFPS’s own authority to make such decisions to the extent that DFPS has no such authority to delegate.

If a caseworker thinks there may be an exception to the requirement, the caseworker must consult with the attorney representing DFPS immediately.

Texas Family Code, §263.004

5433 Requirements Following the Adversary Hearing

CPS December 2013

If the court issues an order naming DFPS as the temporary managing conservator of the child, the caseworker must request that the Vital Statistics Unit identify the court of continuing, exclusive jurisdiction.

Texas Family Code §§262.202 and 155.101

If the court does not name DFPS as temporary managing conservator, and DFPS is dismissed, the caseworker and supervisor decide whether to offer further services to the family.

The decision to offer further services must be based on:

  •  the court order; and

  •  CPS’s assessment of the child’s safety.

However, the caseworker must keep in mind that, following the dismissal of DFPS’s petition, the provision of services is voluntary, unless the court subsequently issues an order.

5440 Aggravated Circumstances

CPS December 2013

In some cases, the court may make a finding that a parent has subjected a child to aggravated circumstances as outlined in Appendix 5440: Aggravated Circumstances.

If the court makes such a finding, the court may:

  •  waive the requirement to develop a service plan;

  •  waive the requirement to make reasonable efforts to return the child; and

  •  accelerate the trial schedule to result in a final order at an earlier date than otherwise required under the mandatory dismissal deadline.

If the court makes such a finding with respect to at least one parent, it is still required to hold the initial permanency hearing no more than 30 days after the adversary hearing.

Texas Family Code, §262.2015

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