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5500 Hearings Required by Chapter 263 and Final Orders for Children Under 18

5500.1 Purpose and Scope: Hearings Required by Chapter 263 and Final Orders for Children Under 18

CPS December 2013

The items under Section 5500 explain the hearings and findings required under federal and state law, in particular the requirements established in Chapter 263 of the Texas Family Code.

The items also explain the requirements for:

  •  obtaining a final order (and the time frames for doing so);

  •  terminating parental rights; and

  •  participating in a mediation.

For additional requirements pertaining to hearings under Chapter 263 and to hearings and orders under Chapter 262, see:

5200 General Issues and Requirements Relevant to CPS Legal Proceedings

5300 Additional General Issues and Requirements Relevant to CPS Legal Proceedings

For the legal requirements related to extended court jurisdiction for former foster children who are over 18, see the items under 5600 Extension of a Court’s Jurisdiction When a Youth Turns 18.

For a useful reference on the sequence of hearings and deadlines covered in Section 5500, see Appendix 5400: Conservatorship Timeline.

5510 The 60-Day Status Hearing

5511 Purpose and Scope: The 60-Day Status Hearing

CPS December 2013

The court must hold a status hearing within 60 days of issuing the order naming DFPS as the temporary managing conservator (TMC) of a child. The primary focus of the status hearing is to discuss the contents and execution of the family’s service plan that is filed with the court.

Texas Family Code §263.202

The only exception to this requirement is if the court has made a finding of aggravated circumstances and no service plan is required. See 5440 Aggravated Circumstances.

The court reviews the service plan for reasonableness, for accuracy, and for compliance with the requirements of the court order.

Although the court reviews multiple aspects of the case and makes a number of findings, those of particular relevance to DFPS are the findings that the court must make about:

  •  whether DFPS has exercised due diligence (that is, made a reasonable effort) to locate all persons who are entitled to be served a citation notifying them about a status hearing, if all such persons have not already been served and given notice (including the alleged father, regardless of whether he has registered with the paternity registry);

  •  whether a plan with the goal of reunification adequately ensures that reasonable efforts are made to enable the child’s parents to provide a safe environment;

  •  whether the child’s parents have reviewed and understand the service plan and understand that their parental duties and rights may be restricted or terminated;

  •  whether the service plan is reasonably tailored to address any specific issues identified by DFPS;

  •  whether the service plan has been signed;

  •  whether the medical consenter has been identified; and

  •  whether sufficient efforts have been made to identify, locate, and provide information about the removal to the child’s relatives and fictive kin (such as persons who are close family friends).

5512 Notice Requirements for the Status Hearing

CPS April 2016

Caseworkers must refer to 5534 Notice Requirements for All Hearings Prior to Final Order when sending notice of the status hearing.

5513 Required Filings in Preparation for the Status Hearing

CPS December 2013

In general, the following documents must be filed with the court before a status hearing:

  •  The family’s initial plan of service

  •  Form 2277 Diligent Search for Missing Parent (if a parent cannot be located)

  •  Form 2070 Status Report to the Court

  •  Form 2637 Notification Regarding Relatives/Designated Caregivers

  •  Any Form 2625 Child Caregiver Resource that is not already filed with the court.

As with any hearing, the attorney representing DFPS may also ask for additional documentation or information.

See:

5513.1 Original Service Plan – Filed 45 Days After DFPS Is Named Temporary Managing Conservator

5513.2 Status Report (Form 2070) – Filed 10 Days Before the Adversary Hearing

5513.3 Notice of Efforts to Assess a Child and Place the Child With Relatives or Kin – 10 Days Before the Hearing

5513.1 Original Service Plan – Filed 45 Days After DFPS Is Named Temporary Managing Conservator

CPS December 2013

No later than 45 days after DFPS is named managing conservator (that is, 45 days after the ex parte court order or the court order issued following an adversary hearing for a nonemergency removal), the caseworker files the initial Family Service Plan. See 5520 The Family’s Service and Visitation Plans: Filing and Review Requirements.

If a parent cannot be located, the caseworker must attach Form 2277 Diligent Search for Missing Parent to the service plan.

5513.2 Status Report (Form 2070) – Filed 10 Days Before the Status Hearing

CPS April 2017

The status report (Form 2070 Status Report to the Court) contains general information about the case and satisfies the requirements that DFPS:

  •  inform the court about its efforts to identify, locate, and provide information to relatives (see Texas Family Code §263.007); and

  •  provide the court with a summary of the child’s medical care (see Texas Family Code 266.007; see also 11161 Including Medical and Behavioral Health Information in Court Reports.

The caseworker:

  •  completes and signs the form;

  •  obtains the supervisor’s approval signature; and

  •  files the form no later than 10 days before the status hearing.

5513.3 Notice of Efforts to Assess a Child and Place the Child With Relatives or Kin – 10 Days Before the Hearing

CPS December 2013

Unless the child is already adopted or in another placement that is intended to be permanent, the caseworker must file with the court at least 10 days before the status hearing any information concerning the caseworker’s efforts to:

  •  assess the child; and

  •  place the child with a relative or fictive kin (such as persons who are close family friends), when appropriate.

Texas Family Code §263.003

To file with the court, the caseworker:

  •  completes Form 2637 Notification Regarding Relatives/Designated Caregivers; and

  •  sends the form to the court.

5513.4 Visitation Plan—10 Days Before the Hearing

CPS December 2013

For any child who is in temporary managing conservatorship and who has a goal of family reunification, the caseworker must file the family’s visitation plan (Form 2110) Visitation Plan no later than 10 days before the status hearing.

Texas Family Code §263.107(d)

5514 Required Action Following the Status Hearing

CPS December 2013

If the court continues DFPS’s managing conservatorship after the status hearing, DFPS must ask for an initial permanency hearing.

The first permanency hearing must take place within 180 days after the court issues the order appointing DFPS as temporary managing conservator of the child.

See 5532 Meeting the Time Frames for Holding a Permanency Hearing.

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

5521 Original Family Service Plan

5521.1 Filing a Service Plan With the Court

CPS December 2013

A family’s service plan must be developed to conform with the requirements explained in 6242 The Family Plan of Service (FPOS).

Once the plan is developed, it must be filed with the court no later than 45 days after the order is issued appointing DFPS temporary managing conservator (that is, 45 days from the ex parte court order or from the order following an adversary hearing in a nonemergency removal).

Texas Family Code §263.101

5521.2 Purpose of the Service Plan

CPS December 2013

A family’s service plan identifies the actions that a parent must take, the skills that a parent must develop and demonstrate, and the goals that a parent must achieve to eliminate or reduce identified threats to the child’s safety and risk of future abuse or neglect.

If a service plan is well-crafted with the parents and the parents meaningfully participate in the services identified by it, the child should usually be able to return home.

This does not mean that the parents have to complete every service in the plan for the child to be able to return home; services can be provided to support the child’s placement back into the home. Rather, the plan outlines the logical series of steps needed for the child to return home at some point in the case, if the parents are making the necessary changes.

5521.3 Failure to Comply With a Service Plan

CPS December 2013

Failure to comply with a family service plan is one ground for termination of parental rights. Failure to comply is often referred to as O ground.

5521.4 When the Original Service Plan Takes Effect

CPS December 2013

The original family service plan takes effect:

  •  when it is signed by the child’s parents and DFPS; or

  •  when the court issues an order giving effect to the plan without the signatures.

If a parent has not signed the plan, the plan does not take effect when it is filed with the court. It must first be reviewed by and made an order of the court.

Texas Family Code §263.103(d)

If a parent was previously missing but is located after the 60-day status hearing, the service plan developed with the newly located parent is considered to be the original family service plan and must be filed with and made an order of the court.

5521.5 A Service Plan for the Family of a Native American Child

CPS December 2013

If at any time during the preparation of a family’s service plan information comes to light indicating that a child in DFPS conservatorship may be a Native American child, the caseworker must:

  •  get as much information as possible (see Form 1705 Indian Child and Family Questionnaire); and

  •  consult with the attorney representing DFPS and the regional attorney as soon as possible.

If the Indian Child Welfare Act applies, applicable legal requirements are significantly different. See 5840 The Indian Child Welfare Act (ICWA).

5522 Amended Service Plans: Signing and Taking Effect

CPS December 2013

An amended family service plan takes effect:

  •  when the parent signs the plan; or

  •  when DFPS files the plan with the court, if the parent does not sign it.

However, regardless of whether the parent signs the plan, all amended family service plans and family plan evaluations must be filed with and made an order of the court.

Texas Family Code §§263.104; 263.106

To comply with this requirement, the caseworker files every amended family service plan or family plan evaluation at least 10 days before the next court hearing.

In most cases, it is not necessary to set a hearing specifically for the court to make the amended plan an order of the court; however, if a substantial change is made between court hearings, or the change causes a great deal of resistance from the family, the caseworker consults with the attorney representing DFPS to determine whether a hearing is necessary.

5523 Duration and Scope of the Service Planning Requirement

CPS December 2013

DFPS must continue developing a service plan with a parent until the court:

  •  makes a finding of aggravated circumstances; or

  •  enters an order terminating the parent’s rights.

The requirement to engage in service planning includes:

  •  parents who are incarcerated; and

  •  parents who live in another country.

For incarcerated parents, caseworkers must check penal institutions to determine what services are available to a parent in that institution and at the least attempt to facilitate parental participation in services, by taking such steps as:

  •  providing the parent with workbooks and articles on parenting; and

  •  requiring the parent to respond with written summaries, and so on.

For more information on service planning requirements see 6240 Case Planning.

For more information on providing services specifically to parents who are living outside the country see 6243 Services to Parents Who Live Outside of the Country.

5524 Visitation Plan: Filing and Court Review

CPS December 2013

The caseworker must file a family’s visitation plan (Form 2110 Visitation Plan) 10 days before the status hearing. See 5513.4 Visitation Plan — 10 Days Before the Hearing.

The visitation plan may be amended at any time with the agreement of the parent and DFPS. Each amended visitation plan must be filed with the court.

Texas Family Code §263.107

The court reviews the visitation plan at the status hearing and subsequent permanency hearings and may modify the plan or order DFPS to modify the plan at any time.

After reviewing the filed plan, the court makes any appropriate orders.

Texas Family Code §§263.108, 263.109

5530 Permanency Hearings for Children Under Temporary DFPS Conservatorship

5531 The Purpose of a Permanency Hearing Before the Final Order

CPS September 2015

The court holds permanency hearings for each child who is under the temporary managing conservatorship (TMC) of DFPS.

The required duties of the court are summarized in Appendix 5531: Requirements for the Court in a Permanency Hearing Before the Final Order for a Child in TMC.

The basic purposes of the hearings include:

  •  reviewing the reasons that the child is in DFPS conservatorship;

  •  reviewing where the child is placed;

  •  determining whether the child’s parents are willing and able to provide the child with a safe environment;

  •  reviewing a summary of the child’s medical care; and

  •  making other determinations pertinent to the care, custody, and control of the child.

Texas Family Code §§263.002, 263.306, 266.007

Permanency hearings also fulfill the federal requirements for conducting reviews every six months and permanency hearings annually, while a child is in the temporary managing conservatorship of DFPS.

For information about the federal requirements, see 42 USC §675(5)(B)(C).

5532 Meeting the Time Frames for Holding a Permanency Hearing

5532.1 Time Frames for the Initial Permanency Hearing

CPS December 2013

The court must hold the initial permanency hearing within 180 days after the court appoints DFPS as the temporary managing conservator of the child.

To ensure that a final court order that is consistent with the permanency plan for the child is rendered before the case is dismissed, the court must do the following at the initial hearing:

  •  Review the status of the child

  •  Review the permanency plan for the child

  •  Schedule the case for a final hearing

Texas Family Code §263.304

5532.2 Time Frames for Subsequent Permanency Hearings

CPS December 2013

Subsequent permanency hearings must be held no later than 120 days after the initial permanency hearing.

For good cause shown, or on the court’s own motion, the court may order more frequent hearings.

Texas Family Code §263.305

5533 Filing Requirements for Permanency Hearings

CPS December 2013

No later than 10 days before each permanency hearing, the caseworker:

  •  files with the court the current family service plan;

  •  files with the court a permanency progress report (Form 2088 Permanency Plan and Progress Report to the Court);

  •  files any Form 2625 Child Caregiver Resource that has not already been filed with the court; and

  •  provides a copy of the service plan and progress report to the following, unless the court orders that the report be provided within a different time period:

  •  Each party

  •  The child’s attorney ad litem

  •  The child’s guardian ad litem

  •  The child’s volunteer advocate

Although the law does not specifically require that a permanency progress report be filed at the initial permanency hearing, DFPS policy requires that the report be filed to meet the intent of Texas Family Code §263.3025.

5534 Notice Requirements for All Hearings Prior to Final Order

CPS April 2016

For all hearings that are held before the final order is rendered, including status hearings, the caseworker must notify the persons and entities listed below at least 10 days before the hearing. For permanency hearings held before a final order is rendered, the caseworker must complete and send Form 2051 Permanency Hearing Notice Letter.

The caseworker must notify:

  •  DFPS;

  •  the child, if the child is 10 years of age or older or the court determines that it is appropriate for the child to receive notice;

  •  the foster parent, potential adoptive parent, relative providing care, or director or director’s designee of the group home or general residential operation where the child lives;

  •  each parent of the child (as long as parental rights have not been terminated);

  •  each parent’s attorney;

  •  each managing conservator or guardian of the child (other than DFPS);

  •  the child’s attorney ad litem, guardian ad litem, and volunteer advocate, if the appointments have not been dismissed;

  •  the licensed administrator (or designee) of the child placing agency (CPA) responsible for verifying or supervising the foster home where the child is placed. The caseworker sends the notice to the administrator in care of the child’s CPA case manager; and

  •  any other person or agency named by the court or determined by DFPS to have an interest in the child’s welfare.

Texas Family Code §263.0021

DFPS Rules, 40 TAC §700.1102

Notice may be given:

  •  in a temporary order following a full adversary hearing;

  •  in open court;

  •  in an order following any hearing prior to the final order; or

  •  in any other manner that would provide actual notice to a person entitled to notice.

Because the person responsible for providing notice varies across jurisdictions, the caseworker must either:

  •  send the notice; or

  •  consult with the attorney representing DFPS if the caseworker is not certain who is responsible for providing notice.

5535 Meeting the Content Requirements for the Permanency Plan and Progress Report for a Child in TMC

CPS September 2015

Unless a court requires a different format, DFPS uses Form 2088 Permanency Plan and Progress Report to the Court to report on the permanency plan for a child who is under DFPS temporary managing conservatorship (TMC).

The form provides fields for entering content required by federal law, state law, and DFPS policy, including an annual report from a managing conservator about the child’s status as required by §153.375 of the Texas Family Code.

The various requirements that are addressed in Form 2088 are explained in Appendix 5535: Legal Requirements Relevant to the Permanency Progress Report for a Child in TMC.

5536 Obtaining Approval of a Permanency Progress Report

CPS December 2013

After a caseworker completes a permanency progress report:

  •  the supervisor must approve the report; and

  •  both the supervisor and caseworker must sign it.

5540 Final Orders and Supporting Actions

5541 Issues to Resolve Before DFPS’s Role in the Lawsuit Ends

CPS December 2013

When DFPS is named as a child’s temporary managing conservator in a proceeding for a suit affecting the parent-child relationship (SAPCR), the legal relationships that existed before the case almost always change.

In addition, whether DFPS leaves the case because a child or youth is reunited with his or her parents, is placed with a managing conservator, is adopted, or becomes an adult, there are key issues that pertain solely to the child or youth that should, ideally, be resolved while the court retains jurisdiction over the case.

The key issues to resolve include, but are not limited to the following:

  •  Citizenship and immigration issues, in particular applying for special immigrant juvenile status (SIJS). While this cannot be resolved by the family law judge, it is important to try to resolve the issue while DFPS continues to be involved with the child or youth. See 5830 Foreign-Born Children in Foster Care.

  •  Child support issues. See 5354.1 Child Support and Dismissal Orders.

  •  An adjudication of paternity. See 5360 Establishing Paternity.

  •  Guardianship issues. See 10340 Preparation for Long-Term Care or Support in Adulthood for Youth With Disabilities. It is not sufficient that a young adult may remain in extended foster care. If a referral for guardianship is appropriate, it is made before the young adult’s 18th birthday.

  •  Issues related to the child’s credit history, any benefits entitlement, savings accounts, and so on.

  •  Issues related to ensuring that the identity documents for the child or youth are correct and consistent.

  •  Issues related to the extent of a parent’s access or custody after the suit (if any).

  •  Other critical issues identified by the child or youth, or the attorney ad litem or guardian ad litem.

5542 Dismissal Deadlines and the Final Order Requirement

CPS December 2013

To facilitate timely permanency for children in conservatorship, Texas law requires that the court in a DFPS conservatorship case dismiss the case on the first Monday following the one-year anniversary of the date that DFPS is named as temporary managing conservator (TMC), including cases in which DFPS is named TMC by an ex parte court order.

The case may be retained beyond the Monday following the one-year anniversary, if before that date:

  •  the court commences the trial on the merits of the case;

  •  the court finds that the case involves extraordinary circumstances and is in the best interest of the child and grants an extension of no more than 180 days; or

  •  the court has ordered a monitored return of the child to the child’s home, as described in 5543 Extending the Dismissal Deadline and 5551.1 Monitored Return of a Child to a Parent, and sets a new dismissal date consistent with that option.

Texas Family Code, §263.401

For information on calculating days, see Appendix 5541: Computation of Time.

5542.1 A Final Order in a DFPS Conservatorship Case in General

CPS December 2013

At the conclusion of a DFPS conservatorship case, whether the court holds a contested trial on the merits or the parties mediate a settlement, the court issues a final order. A final order is an order that specifies the parties’ new legal relationship as described in 5550 Outcomes in a Court’s Final Order.

The final order must resolve not only whether the parents’ rights will be terminated and who will be the child’s managing or possessory conservator, but also key issues critical to the child’s and family’s future relationship, such as issues related to:

  •  child support;

  •  custody and visitation;

  •  paternity; and

  •  legal considerations of significance to the child or youth, such as documents that establish the child’s legal name and correct identity or issues related to guardianship. See 5541 Issues to Resolve Before DFPS’s Role in the Lawsuit Ends.

In the case of a final order that is subject to modification, as described in 5542.2 Standard for Modifying a Final Order, final does not always mean permanent in the sense of never subject to change. A final order that names DFPS as the child’s managing conservator must never be a signal to staff that they cease permanency efforts. See 6233 Selecting the Permanency Goal.

5542.2 Standard for Modifying a Final Order

CPS December 2013

A final order granting DFPS conservatorship of a child may be subject to modification; however, any modification to a final order necessitates filing a new lawsuit, which in turn requires providing new evidence of a material change in circumstances, as discussed below.

If a final order granting DFPS permanent managing conservatorship needs to be modified, the caseworker discusses the circumstances with the supervisor and the attorney representing DFPS.

Modification requires that the circumstances of the child or a conservator (including DFPS, a parent who has parental rights, or another party) have materially changed since the date of the original order.

Changes that meet the standard for modifying a final order include:

  •  the placement of a child in an adoptive home;

  •  the failure of a parent to complete additional services;

  •  the arrest, death, divorce, or marriage of a parent; or

  •  a change in a child’s behavior or wishes.

Texas Family Code, Chapter 156

5541.3 Required Preparation for Final Hearing

CPS December 2013

See Appendix 5541.3: The Caseworker’s Preparation for the Final Hearing for more information on preparing for a final hearing.

5543 Extending the Dismissal Deadline

CPS December 2013

To grant an extension beyond the one-year limit for resolving a case, the court must find:

  •  that extraordinary circumstances necessitate that the child remain in DFPS conservatorship; and

  •  that remaining in DFPS conservatorship is in the best interest of the child.

Extraordinary circumstances are not defined and are subject to the discretion of the court, but by definition this is not an option for most cases. The caseworker consults with the attorney representing DFPS as soon as possible, if he or she believes there is a need to extend the dismissal deadline.

If the court makes a finding of extraordinary circumstances, the dismissal deadline is extended no more than 180 days beyond the original dismissal deadline.

Texas Family Code, §263.401

5550 Outcomes in a Court’s Final Order

CPS December 2013

Each permanency plan, if incorporated into a court’s final order, has a specific effect on DFPS’s conservatorship status and may result in termination of the parent’s rights as shown in the table below. For information on permanency goals and the general order of preference for the goals, see 6234 Prioritizing Permanency Goals.

Permanency Goal (IMPACT Code)

Effect on Parental Rights and Conservatorship

Family reunification (with or without monitored return)

  •  DFPS is dismissed as conservator, one parent is named as managing conservator, and the other parent may have his or her parental rights terminated, may be made a possessory conservator, or may be made joint managing conservator;

or

  •  DFPS is dismissed as conservator and the parents, who are cohabitating, have their rights restored, as if the lawsuit did not happen.

Alt. Family: Relative/Kinship Adoption

Parental rights are terminated

DFPS is dismissed as conservator, once the adoption is consummated

Alt. Family: Relative/ Kinship Conservatorship

Parental rights may or may not be terminated

DFPS is dismissed when the relative or kin is named as permanent managing conservator (PMC)

Alt. Family: Unrelated Adoption

Parental rights are terminated

DFPS is dismissed as conservator, once the adoption is consummated

Alt. Family: Unrelated Conservatorship

Parental rights may or may not be terminated

DFPS is dismissed when another person is named as PMC

APPLA Family: Foster Family DFPS Conservatorship

Parental rights may or may not be terminated

DFPS remains PMC

APPLA Family: Other Family DFPS Conservatorship

Parental rights may or may not be terminated

DFPS remains PMC

APPLA: Independent Living

Parental rights may or may not be terminated

DFPS remains PMC

APPLA: Community Care

Parental rights may or may not be terminated

DFPS remains PMC

5551 Family Reunification and Dismissal of DFPS as Conservator

CPS December 2013

When a family is reunified and DFPS is dismissed as the child’s conservator, the child is returned to one or both parents and DFPS is no longer the conservator of the child in the case. Reunification may be preceded by a monitored return, as described in 5551.1 Monitored Return of a Child to a Parent; however, once reunification is achieved, DFPS is dismissed as the conservator of the child.

At the point of dismissal, the need for legal orders depends on the parents’ circumstances.

If the parents live together, there may be no need for a court order. When the DFPS suit is dismissed, the parents have the same rights with respect to their children that they had before DFPS was involved.

If the parents do not live together, the necessary legal orders depend on what, if any, issues remain regarding the child’s safety.

If one parent is named as the child’s managing conservator, the other parent may be made the child’s possessory conservator.

In some cases, the child’s parents may be named as joint managing conservators with one parent having the right to designate the primary residence of the child; however, if an absent parent poses a safety threat, DFPS does not assume that because the parent is temporarily absent (for example, because the parent has moved to another state or is incarcerated), that the parent will not reappear in the child’s life.

If there are safety concerns regarding a parent who may reappear in the child’s life and place the child at risk of abuse or neglect, the caseworker must solidify the legal relationships before DFPS is dismissed as conservator, including the rare circumstance of terminating the parental rights of one parent and making efforts toward reunification with the other.

In any event, the caseworker must be prepared to make recommendations on issues related to the legal relationship of each of the parents to the child to eliminate as much uncertainty as possible once DFPS is dismissed as conservator.

The issues that the caseworker must be prepared to make recommendations on can include:

  •  visitation;

  •  child support; and

  •  the schedule for shared custody.

5551.1 Monitored Return of a Child to a Parent

CPS December 2013

To grant a monitored return of a child to a parent, the caseworker must provide sufficient evidence to support a temporary order by the court that:

  •  finds that the court retaining jurisdiction is in the best interest of the child;

  •  orders DFPS to return the child to the parent;

  •  orders DFPS to continue to serve as temporary managing conservator (TMC) of the child; and

  •  orders DFPS to monitor the child’s placement to ensure that the child is in a safe environment.

If the court grants such an order, the new dismissal deadline is no later than 180 days from the date that the temporary order for monitored return is granted. There is no requirement that CPS wait until the expiration of this period to recommend to the court that the case be dismissed. On the contrary, a child is reunified, and the case dismissed, as soon as the caseworker has determined that it is safe and appropriate to do so. This permits the family to end its involvement with CPS and return to normal when oversight by CPS and the court is no longer needed.

If the child must be moved from the parent’s home during the monitored return, the new dismissal deadline is whichever one of the following occurs later:

  •  The original deadline set before the monitored return was ordered (see 5542 Dismissal Deadlines and the Final Order Requirement); or

  •  180 days following the change in placement from the parent’s home under the monitored return.

No additional extension based on extraordinary circumstances is allowed. See 5543 Extending the Dismissal Deadline.

A change in placement occurs when a child is moved from the parent’s home under the requirements of the monitored return but the change does not require the same adversary hearing or level of evidence needed for an initial removal.

Texas Family Code, §263.403

5551.2 Presumption in Favor of a Parent as Managing Conservator

CPS December 2013

Unless there is a finding of a history of family violence under Texas Family Code §153.004, there is rebuttable presumption in all suits that affect the parent-child relationship that it is in the best interest of the child for the child’s parents to be named joint managing conservators of the child.

Texas Family Code §153.131

If reunification is not the outcome that DFPS intends for the case, the caseworker prepares sufficient evidence to show the specific conduct of the parent that threatens the child’s safety or otherwise concretely demonstrates why appointing the parent as managing conservator is not in the child’s best interest to rebut this presumption.

5552 Appointing a Conservator Who Is Not the Parent and Dismissing DFPS From the Case

CPS December 2013

If DFPS plans to ask the court to name an individual other than DFPS as the child’s conservator, DFPS must present a preponderance of evidence to show that appointment of the child’s parent or parents is not in the child’s best interest because it would significantly impair the child’s physical health or emotional development. DFPS must present evidence showing the specific conduct of each parent that harms the child’s physical health or emotional development.

Texas Family Code §153.131

In most cases, the individual appointed managing conservator is the person with whom the child is living, such as:

  •  a relative or fictive kin (such as persons who are close family friends); or

  •  a foster parent.

5552.1 Required Caseworker Actions Before Naming a Person Who Is Not the Parent as Managing Conservator

CPS December 2013

Before asking the court to appoint a managing conservator for a child in DFPS conservatorship, the caseworker must complete the following tasks:

  •  Share with a prospective conservator Form 5453 Rights and Duties of NonParent Managing Conservator.

  •  Ensure that an agreement for permanency care assistance is negotiated and signed before conservatorship is awarded, if the person who will be named conservator qualifies for the assistance.

      For information on how to apply for permanency care assistance, see 6685 Applying for Permanency Care Assistance.

      For information on the problems associated with naming a relative or fictive kin (such as close family friends) as the child’s managing conservator before the relative or fictive kin has qualified for, negotiated, and signed a PCA agreement, see Form 2127 PCA Bench Card.

  •  Discuss the differences and benefits of adoption versus managing conservatorship with the person being considered to become the managing conservator (see 6234.23 Adoption vs. Conservatorship and You Can Make a Difference in a Child’s Life: Adoption or Permanent Managing Conservatorship).

  •  Verify that the child has been placed with the caregiver for some supervisory period that is sufficient to ensure that the child has developed a relationship with the caretaker and that the caretaker is able to manage the child’s situation and needs safely and appropriately.

  •  Attempt to ensure that the caregiver to be named managing conservator can attend the hearing.

  •  Ensure that the caregiver has an approved kinship home assessment or foster/adopt home screening as applicable.

  •  Obtain approval from the program director before seeking to name someone as the child’s managing conservator.

5553 DFPS Named as the Child’s Permanent Managing Conservator (PMC)

CPS December 2013

DFPS always attempts to meet a child’s or youth’s need for belonging and unconditional, lifelong legal commitment by pursuing a preferred permanency option for the child or youth. Specifically, DFPS pursues reunification, adoption, or the grant of permanent managing conservatorship (PMC) to a relative, fictive kin (such as close family friends), or other suitable individual (also referred to as positive permanency).

However, there may be circumstances when naming DFPS as the permanent managing conservator (PMC) is a necessary step to facilitate a child’s ultimately being reunified with his or her parents, adopted, or legally placed with relatives, fictive kin (such as persons who are close family friends), or other suitable individuals.

When reunification, adoption, or other permanent placement is not possible within the 12-month time frame established by the Texas Family Code, the caseworker continues to work with the child, family, and potential caregivers to achieve a preferred permanency option.

If the court decides to name DFPS as PMC, the caseworker’s responsibility toward permanency planning and seeking a permanent legal family for the child does not end at that time. Permanency planning is an ongoing process that continues until a child leaves DFPS conservatorship.

Continued efforts must be made to:

  •  identify a lifelong legal family for a child; and

  •  develop lifelong connections for youth who will age out of DFPS conservatorship when they become adults.

5553.1 DFPS Named as the Child’s PMC With Termination of Parental Rights
5553.11 Standard for DFPS to Be Named as the Child’s PMC With Termination of Parental Rights

CPS December 2013

For DFPS to be named as the child’s permanent managing conservator (PMC) following the termination of parental rights, DFPS needs to prove the need for termination, as described in the items under 5563 Involuntary Termination of Parental Rights.

Once termination has been proven, the presumption that appointing a child’s parents as managing conservator is rebutted.

5553.12 Procedural Requirements Following an Award of PMC With Termination of Parental Rights

CPS December 2013

If parental rights are terminated and DFPS is named as the child’s permanent managing conservator (PMC), the caseworker must work with the attorney to ensure that the first placement review hearing is scheduled no more than 90 days following issuance of the final order.

See 5582 Meeting the Time Frames for Holding a Permanency Hearing (PMC).

5553.2 When DFPS Is Named as the Child’s PMC Without Termination of Parental Rights

CPS December 2013

Because naming DFPS as the child’s permanent managing conservator (PMC) without terminating parental rights is generally disfavored, there are several additional requirements that apply when permanent managing conservatorship without termination is the outcome in the case.

See:

5553.21 The Limited Circumstances in Which DFPS Requests PMC Without Terminating Parental Rights

5553.22 The Requirements Specific to Agreeing to PMC Without Terminating Parental Rights During Mediation

5553.23 The Casework Requirements When PMC Is Awarded Without Terminating Parental Rights

5553.3 Pursuing Preferred Permanency Options When DFPS Is Named as the Child’s PMC

5553.4 Requesting a Change in PMC After DFPS Is Appointed

5553.21 The Limited Circumstances in Which DFPS Requests PMC Without Terminating Parental Rights

CPS December 2013

DFPS requests permanent managing conservatorship (PMC) without terminating parental rights only when one of the following circumstances applies:

  •  It is not possible to dismiss DFPS as conservator or name another individual as the child’s PMC; and it is not possible to terminate parental rights.

  •  The appointment is an interim solution to a more favored conservatorship option, as discussed in 5553.3 Pursuing Preferred Permanency Options When DFPS Is Named as the Child’s PMC.

  •  The option is the most appropriate outcome for the child.

It is extremely rare that requesting PMC without terminating parental rights is the best option; therefore, before making such a request, the caseworker:

  •  consults with the supervisor, the program director, and the attorney representing DFPS to consider whether there are grounds for terminating parental rights; and

  •  obtains final approval from the program director.

If the caseworker is seeking PMC without terminating parental rights because the county or district attorney disagrees that the evidence supports a more favored option, the caseworker also consults as soon as possible with the supervisor and regional attorney to consider alternative options.

5553.22 The Requirements Specific to Agreeing to PMC Without Terminating Parental Rights During Mediation

CPS December 2013

In addition to following the requirements explained in the items under 5553.2 When DFPS Is Named as the Child’s PMC Without Termination of Parental Rights, the caseworker must follow the requirements explained in 5573 Agreeing to Accept DFPS Conservatorship Without Termination of Parental Rights.

5553.23 The Casework Requirements When PMC Is Awarded Without Terminating Parental Rights

CPS December 2013

If the court names DFPS as the child’s PMC without terminating parental rights, the child’s caseworker must:

  •  participate in placement review hearings and follow the related requirements explained in 5580 Permanency Hearings After Final Orders for Children Under DFPS Permanent Managing Conservatorship (PMC);

  •  meet all requirements explained in 6360 When CPS Obtains Permanent Managing Conservatorship Without Termination of Parental Rights; and

  •  follow the guidance regarding ongoing permanency in 6233 Selecting the Permanency Goal.

5553.3 Pursuing Preferred Permanency Options When DFPS Is Named as the Child’s PMC

CPS December 2013

If DFPS is named as the child’s permanent managing conservator (PMC), the caseworker continues to pursue:

  •  a permanency goal (primary and concurrent); and

  •  a conservatorship option that is preferable to DFPS remaining managing conservator until the child becomes an adult, is adopted, or is otherwise permanently placed.

By law, DFPS must attempt to:

  •  work with the child’s caregiver to determine whether the caregiver is willing to become a permanent placement for the child;

  •  locate a relative, fictive kin (such as a close family friend), or another suitable person to serve as permanent managing conservator of the child (see 6121.2 Initial Removal: Providing Notice of CPS Conservatorship); and

  •  evaluate any change in a parent’s circumstances to determine whether:

  •  the child can be returned to the parent, or

  •  parental rights must be terminated, if the rights are not terminated already.

Texas Family Code §263.502(c)(7)

Although the statutory requirements apply only when parental rights have not been terminated, by policy, DFPS continues the efforts in any instance in which the department is serving as the child’s permanent managing conservator.

5553.4 Requesting a Change in PMC After DFPS Is Appointed

CPS December 2013

To name in a final court order a relative of the child or other appropriate person as the child’s managing conservator after DFPS has been named permanent managing conservator (PMC), the caseworker must do all of the following:

  •  Meet the standard outlined in 5542.2 Standard for Modifying a Final Order

  •  Obtain prior approval from the program director

  •  Document the decision clearly in the case record (that is, in the monthly evaluations and the child’s service plan in the IMPACT system).

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