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5800 Special Issues

5800.1 Purpose and Scope: Special Issues

CPS December 2013

The items under Section 5800 explain the legal proceedings and requirements that are not part of every CPS case but are nonetheless an important part of CPS court-related practice.

5810 Interstate Compact on the Placement of Children (ICPC)

5811 Impact of Interstate Placements on the DFPS Legal Case

CPS December 2013

The Interstate Compact on the Placement of Children (ICPC) is a compact, or agreement, between the states governing how and when children can be placed across state borders.

Determining Whether the ICPC Applies

The ICPC generally applies when a child in DFPS conservatorship is placed in another state.

Exceptions

The ICPC does not apply under the following circumstances:

  •  The ICPC does not apply when a child is placed with a noncustodial parent, as long as the Texas court does not have or seek evidence that the parent is unfit and does not retain jurisdiction over the child after the placement.

      If a caseworker has information suggesting that a noncustodial parent is inappropriate, cannot meet a child’s special needs, or needs ongoing supervision following placement, the caseworker, along with the support of the Texas Interstate Compact Office (TICO) and the attorney representing DFPS, as appropriate, can argue that this exception does not apply.

  •  The ICPC does not apply when a person who has the legal authority to place a child places the child either with a relative (defined as the child’s parent, step-parent, grandparent, adult brother or sister, or adult uncle or aunt) or with a guardian other than the child welfare agency. A person has the legal authority to place if he or she has a valid court order granting that authority or is an established parent whose parental rights have not been limited by a temporary or final court order.

  •  The ICPC does not apply when a mentally ill or developmentally disabled child is placed in a facility for acute short-term treatment for stabilization in an emergency.

Questions

Caseworkers who have questions about whether the ICPC applies to a case must consult as soon as possible with:

  •  the ICPC coordinator for their region; or

  •  the attorney representing DFPS.

Home Screenings

Federal law requires states to:

  •  complete a home screening; and

  •  provide a written report on the results of the screening to the sending state within 60 calendar days of receiving a placement request:

42 U.S.C. §671(a)(26)

The federal law requires only that a report on the home screening be provided; it does not require that a placement decision be given within 60 days or that prospective caretakers must complete training or education requirements within that time.

For More Information

The ICPC is enacted as part of the Texas Family Code §162.101.

ICPC regulations are published online by the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC).

See also:

4510 Placing Children Outside of Texas

Appendix 5254: Tip Sheet on ICPC Violations

5812 Priority Handling for Interstate Placements With Certain Relatives or Guardians

5812.1 Criteria for Priority Handling of an ICPC Case Under Regulation 7

CPS December 2013

In limited circumstances, the attorney representing DFPS can file a motion asking that the Texas court designate the ICPC request for priority handling under Regulation 7.

This is only an option if a child in DFPS conservatorship is being considered for placement with a parent, stepparent, grandparent, adult uncle or aunt, adult brother or sister, or the child’s guardian, and the case meets at least one of the following criteria:

  •  Unexpected dependency because a parent or guardian is incarcerated, is incapacitated, (medically, mentally, or physically), or dies

  •  The child (including any siblings being placed in the same placement) is four years old or younger

  •  The court finds that any child in the sibling group has a substantial relationship with the proposed placement resource

  •  The child is in an emergency placement

A Regulation 7 orderis not available, if:

  •  the child is being placed in licensed foster care or for adoption;

  •  the child is already living in the receiving state; or

  •  the proposed placement is with a noncustodial parent, the court has no evidence of unfitness and does not seek any evidence from the receiving state regarding fitness, and the court intends to relinquish jurisdiction immediately upon placement.

      In this circumstance, ICPC approval is not required for placement.

5812.2 Required Actions to Request a Court Order for an Expedited Placement Decision

CPS December 2013

If the child meets the criteria for the priority home screening described in 5812.1 Criteria for Priority Handling of an ICPC Case Under Regulation 7, the caseworker

  •  completes Form ICPC105 ICPC Criteria for Priority Home Screening (known as the Regulation 7 Worksheet); and

  •  submits the completed form (worksheet) to the attorney representing DFPS.

The attorney representing DFPS:

  •  prepares the appropriate motion and order; and

  •  submits the motion and order to the Court.

The caseworker prepares to testify regarding:

  •  the information in the form (worksheet); and

  •  any other information relevant to the requested placement.

5812.3 Effect of an Order for a Priority Home Screening Under Regulation 7

CPS December 2013

If a priority home screening is ordered, the receiving state must provide a home screening to the sending state within 30 calendar days from the date the receiving state accepts the request for a priority ICPC placement.

A priority screening may not be requested, if:

  •  the proposed placement is for a foster or adoptive home; or

  •  the child is already placed in the receiving state, in violation of ICPC guidelines.

5812.4 Required Actions Following Issuance of an Order for a Priority Home Screening Under Regulation 7

CPS December 2013

If the court orders a priority home screening under Regulation 7, the caseworker includes the following additional three items in the request packet:

  •  Form ICPC105 ICPC Criteria for Priority Home Screening (known as the Regulation 7 Worksheet) uploaded into the IMPACT system

  •  Order of compliance (the court order approving priority handling), uploaded into IMPACT

  •  Priority Home Screening Request form, entered in IMPACT

The caseworker then sends the packet to the ICPC administrator within three business days of receiving the order of compliance.

5813 When an Interstate Placement Is Denied by the Receiving State

CPS December 2013

If the receiving state does not approve a placement requested by DFPS, DFPS may not recommend the placement to the court. Making a placement in violation of the Interstate Compact on the Placement of Children (ICPC) is a Class B misdemeanor in Texas.

Texas Family Code §§162.101 Article V, 162.107

If the child is ordered by the court to be placed in an unapproved placement, the placement violates the law and the receiving state is not be obligated to provide courtesy monitoring of the placement.

5814 Requirement That the Court Retain Jurisdiction After Making an Interstate Placement

CPS December 2013

Once a child is placed out of state, the Interstate Compact on the Placement of Children (ICPC) requires the sending state to retain jurisdiction until the child is:

  •  adopted;

  •  reaches the age of majority;

  •  becomes self-supporting; or

  •  the receiving state concurs with discharging the child or dismissing the legal case.

Texas Family Code §162.101 Article V

This requirement is intended to ensure that the placing state remains responsible for the child until the case is resolved. As long as the placing state retains the case, if the placement is disrupted, or the child requires additional services or funding, the sending agency remains responsible for accepting custody of the child or making an alternative approved placement

5815 International Placements

CPS December 2013

For information on placing a child with relatives or fictive kin (such as persons who are close family friends) who live in a foreign country, see:

6730 Placements in a Foreign Country

6731 Home Studies in Foreign Countries

6732 Procedure for International Placement

In all cases, if a child is placed in a foreign country, the caseworker must consider that, once the placement is made, neither the state court nor DFPS has authority over the child.

If a parent who lives outside of the U.S. needs services as part of a reunification plan, see 6243 Services to Parents Who Live Outside of the Country.

5820 Court-Related Requirements for Travel by Child in DFPS Conservatorship

CPS December 2013

If a child in DFPS conservatorship travels, the following policy applies.

Out of State

Advance approval by the local court is necessary only if the local court requires it.

See the When a Child or Youth in CPS Conservatorship Travels Resource Guide.

Outside of the US

If a caregiver wants to travel outside of the U.S. with a child in DFPS conservatorship, the court must issue an order approving the child’s travel. See 6474 When a Child Travels Outside of the U.S.

5830 Foreign-Born Children in Foster Care

CPS December 2013

There are a number of legal and programmatic issues that may arise when foreign born children come into substitute care. The requirement to notify a foreign consulate if a foreign-born child comes into care is discussed in 5831 Notice to the Foreign Consulate Required.

Other legal issues to be aware of if a child is born outside the U.S. include the following:

  •  Foster children who have no immigration status may be eligible to become permanent residents by applying for Special Immigrant Juvenile Status (or may be eligible for other forms of relief).

  •  Foster children who are permanent residents may be eligible to apply to become naturalized US citizens.

For detailed information on these and related issues, such as foreign travel, providing services to parents in foreign countries, placing children in foreign countries, see Section 6700 International and Immigration Issues.

Caseworkers with questions may consult with:

  •  a DFPS immigration specialist; or

  •  the regional attorney assigned to immigration issues.

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

5831 Notice to the Foreign Consulate Required

CPS December 2013

If DFPS removes a child who was born in another country and the child is not a U.S. citizen, DFPS must notify the foreign consul to comply with the Vienna Convention on Consular Relations, Article 37(b).

If the U.S. citizenship status of a foreign-born child is unclear, the best practice is to notify the consul. In addition to satisfying the legal requirement, contact with the consul may facilitate locating family members or identifying resources for the family.

5831.1 How to Give Notice to Foreign Consulate

CPS December 2013

To notify a foreign consulate that DFPS has removed a child, the caseworker:

  •  completes Form 2650 Letter to Foreign Consulates;

  •  sends Form 2650 to the consulate by fax (and files it, with the confirmation notice attached) or by mail (with a return receipt requested); and

  •  sends a copy of the notice to the attorney representing the DFPS (by mail or fax), so that the attorney is aware of the consulate’s involvement.

Contact information for Mexico’s consular offices is available in Form 2013 Questions and Procedures for Working With Foreign-Born Children in Foster Care.

Contact information for consular offices from other countries is available from DFPS immigration specialists or the U.S. State Department at the Contact Information for Foreign Consular Offices in the United States.

For more information about working with consular staff, see the When a Child or Youth in CPS Conservatorship Travels Resource Guide.

5840 The Indian Child Welfare Act (ICWA)

5841 Purpose of ICWA

CPS December 2013

The Indian Child Welfare Act (ICWA) is a federal law that applies to any DFPS case involving an Indian child, as the term is defined by ICWA. See 25 U.S.C. §1901 et seq.

Although the law refers to and applies only to an Indian child, as defined by the ICWA, this policy uses the term Native American where the context allows, because it is accurate and is generally preferred for its recognition of Native American origins.

The purpose of the ICWA is to preserve Native American tribal cultures (including Native Alaska tribal cultures), by giving legal rights to the children, parents, and tribes protected by this law.

Failure to comply with the ICWA can result in a final order being reversed on appeal.

To avoid having a final order reversed and a child’s chance for a permanent home affected, the caseworker:  

  •  routinely asks families whether they are Native American;

  •  documents the families’ responses; and

  •  consults with the attorney representing DFPS and the regional attorney, if the caseworker believes that a case may involve a Native American child.

5842 Identifying a Native American Child

CPS December 2013

The law defines a Native American child as an unmarried person under age 18 who is either:

  •  a member of a Native American tribe; or

  •  eligible for membership in a Native American tribe and the biological child of a tribal member. See 25 U.S.C. §1903(4).

To find out whether a child has Native American family history, the caseworker routinely asks:

  •  any child old enough to be interviewed;

  •  any parent of the child who is available to be interviewed; and

  •  any relatives who are available to be interviewed.

Because key facts about a child’s family history may not be available when a case is first investigated, the caseworker routinely asks, throughout the case, about whether a child has Native American family history, especially when new family members are identified.

Whether family members deny or report tribal family history, the caseworker documents the information on:

  •  the removal affidavit; and

  •  any reports filed with the court.

For example:

Information about the Child’s Native American Status: Mother denies tribal family history; father reports that his great-grandfather may be Sioux. Paternal grandmother says that her husband’s family was from the Cherokee tribe in Oklahoma.

If the caseworker obtains information indicating that there is a possible tribal heritage, the caseworker:

  •  completes Form 1705 Indian Child and Family Questionnaire;

  •  confers with the regional attorney and attorney representing DFPS as soon as possible; and

  •  refers to the following CPS policies:

1225 Indian Child Welfare Act

Appendix 1226-A: Child-Placing Requirements of the Indian Child Welfare Act and Related Guidelines and Regulations

Appendix 1226-B: Checklist for Compliance With the Indian Child Welfare Act

As much information must be provided on Form 1705 as possible to determine whether a child is a member of a tribe or is eligible for membership in the tribe.

5843 Decision Regarding Native American Status

CPS December 2013

There are more than 500 federally recognized Native American tribes in the U.S., and children from any one of these tribes may be living in Texas. Three federally recognized tribes have reservations in Texas: the Kickapoo, near Eagle Pass, the Alabama-Coushatta Tribe, near Livingston, and the Ysleta del Sur, also known as Tigua, near El Paso.

Each tribe has its own membership requirements and only the tribe can decide whether a child is a Native American child, as defined by the Indian Child Welfare Act (ICWA).

A child may be a Native American child, even if:

  •  the child’s Native American relative is a distant one;

  •  the child’s parent or grandparent was never enrolled as a tribal member;

  •  one or both parents are opposed to the tribe being involved;

  •  the child and family do not observe tribal traditions and practices; or

  •  the child is not enrolled in the tribe

If there is any indication that a child’s family may have a tribal connection, the caseworker gives the relevant information to the tribe and ask that membership or eligibility be confirmed or denied.

5844 Legal Requirements If the ICWA Applies

CPS December 2013

If a Native American child, as defined by the Indian Child Welfare Act (ICWA), is taken into DFPS custody, almost every aspect of the social work and legal case is affected, including as follows:

  •  The legal burden of proof for removal is higher, as is the legal burden of proof for obtaining any final order terminating parental rights or restricting a parent’s custody rights.

  •  DFPS must serve the child’s parents, tribe, Native American caretakers, and the Bureau of Indian Affairs with a specific notice regarding ICWA rights.

  •  ICWA requires that the caseworker must make active efforts to reunify the child and family.

  •  The child must be placed according to ICWA statutory preferences.

  •  Expert testimony on tribal child and family practices may be necessary.

  •  A valid relinquishment of parental rights requires a parent to appear in court and a specific statutory procedure.

All of these requirements apply to both a Native American parent and a parent who is not Native American.

For a quick reference, see:

Form 1700 Indian Child Welfare Act Resource Guide

Form 1705 Indian Child and Family Questionnaire

Form 1706 Indian Child Welfare Act Checklist

5850 Judicial Bypass to Notifying a Parent About Abortion

CPS February 2016

A pregnant, unemancipated minor, including a minor in DFPS conservatorship, may seek judicial approval to obtain an abortion:

  •  without notifying or getting the consent of her parent, guardian, or conservator; and

  •  without seeking permission from, or notifying, DFPS.

See Texas Family Code, Chapter 33, Notice of and Consent to Abortion.

Under Chapter 33, pregnant minors may file an application for judicial bypass in the following courts, in any part of the state:

  •  a county court at law;

  •  a court with probate jurisdiction; or

  •  a district court, including family court (not limited to a court having jurisdiction due to conservatorship issues).

Upon receiving an application from a pregnant minor, the court must immediately appoint:

  •  a guardian ad litem to the minor; and

  •  an attorney, if the minor does not already have one.

The court must rule on the application for judicial bypass by 5 p.m. on the fifth business day after the application is filed with the court (unless the minor consents to a delay).

If the court approves the application, the clerk issues a certificate showing that the minor’s application for judicial bypass has been granted.

If the court denies the application, the minor may appeal.

If the court has reason to believe that a minor has been or may be physically or sexually abused, the court must immediately report the suspected abuse to DFPS and law enforcement and refer the minor to DFPS for services or intervention that may be in the minor’s best interest. DFPS must investigate the suspected abuse and cooperate with law enforcement in any concurrent criminal investigation. If it is determined after the investigation that the matter needs to be referred to prosecuting authorities, DFPS must first consult with law enforcement to determine if law enforcement will refer the matter. If law enforcement will not be making the referral, DFPS shall refer the matter to the appropriate prosecuting authorities.

Texas Family Code §33.0085

See 2341.1 Referral to Prosecution of Suspected Physical or Sexual Abuse.

All court proceedings under Chapter 33 must be conducted in a manner that protects the anonymity of the minor. An order of the court under Chapter 33 is confidential and privileged and not subject to disclosure except to:

  •  court-appointed participants;

  •  a person designated by the minor; or

  •  a government agency or attorney in a criminal or administrative action seeking to assert or protect the interest of the minor.

For information on how to proceed when a child under DFPS conservatorship is pregnant or is seeking an abortion, see:

11740 Pregnancy and Abortion

5851 DFPS Appointment as Guardian Ad Litem

CPS December 2013

DFPS does not serve as both a minor’s conservator and guardian ad litem. If a court seeks to appoint DFPS as the guardian ad litem to a pregnant minor in a judicial bypass case and the minor is in DFPS conservatorship, the caseworker must immediately notify his or her regional managing attorney for further instruction.

Under Texas Family Code Chapter 33, a court may appoint a caseworker as a guardian ad litem for a pregnant minor who is not in DFPS conservatorship, but who has applied for judicial bypass; however, appointments such as this are rare. If a caseworker is appointed as a guardian ad litem under such as circumstance, the caseworker must immediately notify his or her regional managing attorney for further instruction.

5852 Record of Guardian Ad Litem Appointment

CPS December 2013

Format

When a caseworker is appointed as a guardian ad litem under Chapter 33 of the Texas Family Code, the caseworker creates an official business record for the appointment by:

  •  entering an automated referral in the IMPACT case management system; and

  •  creating a paper record with Jane Doe and the cause number (as issued by the court) as the file name.

The caseworker must not combine the paper record for the appointment with any other case record for the client.

Confidentiality

The official business record for the appointment of a guardian ad litem is confidential. The record is not released to persons who are otherwise entitled to CPS records.

Texas Family Code §33.003(k).

Retention

The caseworker files the confidential paper record in the program administrator’s office in a locked file cabinet.

The caseworker:

  •  retains the paper record for 18 months after the Chapter 33 proceedings (and related appeal, if any); and

  •  destroys the record in a manner that protects confidentiality.

5860 Social Studies

5861 Definition of Social Studies

CPS December 2013

A social study is an evaluation conducted to obtain information about the adoption of a child, the conservatorship of a child, or the possession of or access to a child.

The evaluator uses the results of the evaluation to make recommendations to a court, the parties in the case, and their attorneys.

A social study does not evaluate:  

  •  services that are provided in conformance with the Interstate Compact on the Placement of Children (ICPC); or

  •  the assessments made on the individuals designated on Form 2625 Child Caregiver Resource (that is, the relatives or fictive kin, such as close family friends, who are recommended by a parent as potential caregivers for a child).

Texas Family Code, §107.0501(1)

5862 Requirements for Social Studies

CPS December 2013

Social studies are required by Chapter 107 of the Texas Family Code.

Social studies may be conducted:

  •  in anticipation of an adoption (a pre-adoptive social study); or

  •  after a child is adopted (a post-placement, adoptive social study).

While a local court or a DFPS region may have additional requirements for filing or reporting in anticipation of an adoption, for the purposes of a DFPS lawsuit, social studies are:

  •  conducted by staff in the Foster and Adoptive Home Development (FAD) area and

  •  governed by Subchapter S of Minimum Standards for Child-Placing Agencies.

Texas Family Code, §107.0519

Minimum Standards for Child-Placing Agencies, 40 Texas Administrative Code, Chapter 749, Subchapter S

5863 Orders for DFPS to Conduct a Home Screening in a Case to Which DFPS Is Not a Party

CPS December 2013

If the issue in a lawsuit is adoption of, possession of, or access to a child and DFPS is not a party to the suit, the court appoints a private agency or another person to conduct the social study.

Texas Family Code §107.051(c)

DFPS does not have the authority to conduct a home screening, if DFPS is not a party to the lawsuit.

If DFPS is ordered to conduct a home screening and DFPS is not a party, the caseworker must contact the regional attorney as soon as possible.

5870 Prior Out-of-State Orders Regarding Children

CPS December 2013

If a child has previously been the subject of a court order related to paternity, custody, or child support in another state, each state is required to honor and uphold the child custody orders issued in another state.

Texas Family Code §152.106

If there is or may be such an order in place, the caseworker must consult with the attorney representing DFPS.

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