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5500 From Status Hearing to the Final Hearing

CPS March 2018

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

5200 Notice, Service, and Working with Attorneys and Advocates

5300 Court Orders, Notice to the Court, Indian Child Welfare Act, Paternity, and Child Support

For the legal requirements related to extended court jurisdiction for former foster children who are over 18, see 5600 Extended Court Jurisdiction When a Youth Turns 18 and its sub-items.

Conservatorship Timeline

This timeline describes the sequence and deadlines for hearings under Chapter 263 of the Texas Family Code. The corresponding policies are in the items under 5500 From Status Hearing to the Final Hearing.

Day

Activities Required

Discussion and Comments

0

Ex parte order before Removal

The 365-day clock starts when DFPS gets temporary managing conservatorship (TMC), which may be ex parte (Texas Family Code §§262.101, 262.102)

0

Emergency ex parte order after removal

If the emergency possession is without a court order, an ex parte hearing must be held on the first working day after removal (maximum 3 days) (Texas Family Code §262.106).

14

Nonemergency order

If removal is ordered after a noticed hearing, the temporary order remains in effect until further order of the court and the next hearing is the status hearing.

14

Full adversary hearing, temporary orders, or return to the parent or relative are required

Court must inform each parent in open court that parental rights may be restricted or terminated unless the parent is willing and able to provide a safe environment for the child (Texas Family Code §262.201(c) ).

15

Request to identify the court of continuing jurisdiction; motion to transfer (TFC §155.201 et seq)

If the court has rendered temporary orders, DFPS must request the identity of the court of continuing jurisdiction (Texas Family Code §262.202).

Transfer is mandatory, but does not affect the time limits for permanency. A motion to transfer may be filed outside the time limits in Chapter 155 (Texas Family Code §262. 203(b)).

45

File service plan

DFPS must file its service plan not later than 45 days from the date DFPS is appointed TMC (Texas Family Code §263.101).

60

Status hearing

Court must hold a hearing to review the child’s status and the permanency plan within 60 days after TMC is awarded (Texas Family Code §263.201).

Court must inform each parent in open court that parental rights may be restricted or terminated unless the parent is willing and able to provide a safe environment for the child (Texas Family Code §263.006).

170

Permanency progress report

DFPS must file a permanency progress report and serve it on all parties at least 10 days before each permanency hearing (Texas Family Code §263.303).

180

Initial permanency hearing

Ten days before the hearing, notice of the hearing and a copy of the permanency plan is provided to the parties, foster parents, and ad litems, including volunteer advocates (Texas Family Code §263.0021 ; §263.3025(a)).

The court reviews the caseworker’s efforts to locate and serve the parties (Texas Family Code §263.0021 ; also in 263.306(2)).

The child must attend the hearing, unless specifically waived by the court (Texas Family Code §263.302).

The court informs each parent in open court that parental rights may be restricted or terminated unless the parent is willing and able to provide a safe environment for the child (Texas Family Code §263.006).

The specific duties of the court are explained in the Hearings and Legal Proceedings Resource Guide, under Requirements for the Court in a Permanency Hearing Before the Final Order for a Child in TMC

290

Permanency progress report

File a permanency progress report and serve it on all parties at least 10 days before each permanency hearing (Texas Family Code §263.303).

300

Permanency hearing

Court may shorten, but may not extend the 120-day deadline for subsequent permanency hearings (Texas Family Code §263.305).

All requirements for initial permanency hearing apply.

364

Extension order

The court may extend the time by an additional 180 days from the original deadline if the court finds that there are extraordinary circumstances (Texas Family Code §263.401(b) ).

The court may not grant additional extensions (Texas Family Code §263.401(c)); however, the court may place the child with a parent for up to 180 days of monitoring (Texas Family Code §263.403).

365

Commencement of trial on the merits or dismissal

A trial on the merits results in a final order. 

A final order is an order that does one of the following:

  •   Returns the child to a parent

  •   Grants managing conservatorship to a relative or other person

  •   Appoints DFPS as permanent managing conservator without terminating the parent-child relationship (within the limits of §263.404)

  •   Appoints DFPS as permanent managing conservator after terminating the parent-child relationship

If a final order results in termination and an award of permanent managing conservatorship to DFPS, the court must hold a permanency hearing after final order within 90 days of the final order and every six months thereafter to review:

  •   the child’s placement;

  •   DFPS’s permanency plan for the child;

  •   DFPS’s progress toward achieving that plan; and

  •   any other issues.

The requirements for these hearings are set out in Texas Family Code §§263.501-503 and summarized in the Hearings and Legal Proceedings Resource Guide, under Requirements for the Court in a Permanency Hearing After the Final Order of Permanent Managing Conservatorship (PMC) The placement review hearing continues as long as DFPS is managing conservator.

410

Permanency progress report (during extension)

DFPS must file a permanency progress report and serve it on all parties at least 10 days before each permanency hearing (Texas Family Code §263.303).

420

Permanency hearing (during extension)

All requirements for initial permanency hearing apply.

540

Deadline for the final permanency hearing (Another permanency progress report is required 10 days before this hearing)

The case must be dismissed on the next Monday following 18 months from the date that temporary managing conservatorship was granted to DFPS, unless either:

  •   the court has commenced a trial on the merits (Texas Family Code §263.401(b)); or

  •   the child has been placed with a parent for up to 180 days of monitoring (Texas Family Code §263.403)

**

Special rule when temporary placement for monitoring breaks down

The court may order DFPS to continue as temporary managing conservator for not more than 180 days with the child placed in the home of a parent for monitoring.

The court order must include specific findings of the grounds for the order and must establish a dismissal date not more than 180 days after the order is entered (Texas Family Code §263.403(b)).

If DFPS removes the child during the monitoring period, the deadline for dismissal or entry of a final order is the original dismissal date or 180 days after the removal of the child, whichever is later (Texas Family Code §263.403(c)).

5510 The 60-Day Status Hearing

CPS March 2018

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

Texas Family Code §§ 263.201(a)-(b); 262.2015

See 5440 Aggravated Circumstances.

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(b)

5511 Findings the Court Makes at the Status Hearing

CPS March 2018

While the court reviews multiple aspects of the case and makes a number of findings, several are particularly relevant to DFPS. Therefore, DFPS must provide information to help the court make a finding of:

  •   whether the mother, father and any other person with a court ordered relationship has been served. Serving a citation for a lawsuit is not the same as providing notice of a hearing. For details, see 5230 Service of a Citation;

  •   whether DFPS has exercised due diligence (that is, made reasonable efforts) to locate all persons who are entitled to be served a citation, if all such persons have not already been served and given notice including the alleged father;

  •   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).

Texas Family Code §263.202

5512 Notice Requirements for the Status Hearing

CPS March 2018

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 March 2018

In general, the caseworker must file the following documents 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 Status 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 March 2018

The caseworker must file the initial Family Service Plan no later than 45 days after DFPS is named managing conservator, that is, 45 days from the date that:

  •   DFPS takes emergency custody under exigent circumstances;

  •   the emergency ex parte court order is signed; or

  •   the court order was issued following a show cause hearing for a nonemergency removal.

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 March 2018

The caseworker must:

  •   complete and sign Form 2070 Status Report to the Court;

  •   obtain the supervisor’s approval signature; and

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

The status report 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).

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

CPS March 2018

Unless the child is already adopted or in another placement 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.

If the child has not been placed with a relative or other designated caregiver, the caseworker must explain:

  •   the reasons why the child has not placed the child with a relative or other designated caregiver; and

  •   any actions the department is taking to place the child with a relative or other designated caregiver.

Texas Family Code §263.003 and §262.114(a-1)-(a-2)

To file with the court, the caseworker must:

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

  •   send the form to the court.

5513.4 Visitation Plan 10 Days Before the Hearing

CPS March 2018

For any child who is in DFPS’s temporary managing conservatorship and who has a goal of family reunification, the caseworker must file 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 March 2018

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 March 2018

The caseworker must develop a family’s service plan to conform to the requirements explained in 6242 The Family Plan of Service.

Once the plan is developed, the caseworker must file it with the court no later than 45 days after the order is issued appointing DFPS temporary managing conservator.

Texas Family Code §263.101

5521.2 Purpose of the Service Plan

CPS March 2018

The goal of the service plan is to develop a strategy for the parent to eliminate or reduce identified threats to the child’s safety and risk of future abuse or neglect. In the family’s service plan, the caseworker must identify:

  •   the actions the parent must take;

  •   the skills the parent must develop and demonstrate; and

  •   the goals the parent must achieve.

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. Rather, the caseworker must outline the logical series of steps that must be taken 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 March 2018

Failure to comply with a family service plan is one ground for termination of parental rights. Failure to comply is often referred to as the O ground (referring to its clause in the Family Code law cited below). However, a court may not order termination of parental rights on this ground if the parent can prove by a preponderance of the evidence that:

  •   the parent could not comply with specific provisions of the court order; and

  •   the parent made a good faith effort to comply and the failure to comply is not attributable to any fault of the parent.

Texas Family Code §161.001(b)(1)(O)

5521.4 When the Original Service Plan Takes Effect

CPS March 2018

The original family service plan takes effect:

  •   when the child’s parents and DFPS sign it; 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 March 2018

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 as soon as possible.

If the Indian Child Welfare Act applies, applicable legal requirements are significantly different. See 5740 The Indian Child Welfare Act (ICWA).

5522 Amended Service Plans: Signing and Taking Effect

CPS March 2018

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 must file 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, the caseworker must consult with the attorney representing DFPS to determine whether a hearing is necessary if:

  •   a substantial change is made between court hearings, or

  •   the change results in a great deal of resistance from the family.

5523 Duration and Scope of the Service Planning Requirement

CPS March 2018

The caseworker 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 least attempt to ensure the parent participates in services. Examples of providing support include but are not limited to:

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

  •   requiring the parent to respond with written summaries.

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 March 2018

The caseworker must file 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 March 2018

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

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.

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 March 2018

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 March 2018

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 March 2018

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

  •   file the current family service plan with the court;

  •   file Form 2088 Permanency Plan and Progress Report to the Court with the court;

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

  •   provide 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; and

  •   the child’s volunteer advocate.

Texas Family Code §263.3025

5534 Notice Requirements for All Hearings Prior to Final Order

CPS March 2018

For all hearings 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:

  •   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 (notice to these individuals must state that the person may, but is not required to, attend and may request to be heard at the hearing);

  •   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 FAD caseworker or licensed administrator (or designee) of the child placing agency (CPA) responsible for verifying or supervising the foster home where the child is placed. (If the home is being supervised by a CPA, 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

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 March 2018

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

The form provides fields for entering content required by federal law, state law, and DFPS policy.

The caseworker must include information in the progress report necessary for the court to make findings and determinations in the following categories.

Locating Appropriate Individuals

The caseworker must include information for the court to make findings and determinations about DFPS’s efforts to:

  •   locate and request service of citation on all persons entitled to service; and

  •   obtain a parent’s assistance in locating the child’s absent parent, alleged father, or relative.

Child Safety and Well-Being

The caseworker must include information for the court to make findings and determinations about:

  •   if the child’s safety, well-being, and needs, including medical or special needs, are being met;

  •   the extent of the parties’ compliance with any temporary court orders and the service plan; and

  •   the extent of the parties’ progress toward alleviating the causes that led to the child’s removal.

Normalcy

The caseworker must include information for the court to make findings and determinations about whether DFPS has ensured that:

  •   the child has regular, ongoing opportunities to engage in age and developmentally appropriate normalcy activities;

  •   the child’s substitute caregivers are following the reasonable and prudent parent standard by making decisions similar to those a parent would make regarding a child’s participation in age-appropriate normalcy activities without DFPS’s prior approval; and

  •   for a child who is age 16 or older and has a permanency plan of another planned permanent living arrangement, the child’s foster family home or child care institution is consulting with the child in an age-appropriate manner about opportunities for the child to participate in activities.

Placement Status

The caseworker must include information for the court to make findings and determinations about:

  •   if the child’s placement (in state or out of state) continues to be necessary, appropriate and in the child’s best interest, including whether the placement is the least-restrictive and in closest proximity to the child’s parents;

  •   whether to return the child to the child’s parents if they are willing and able to provide a safe environment and return is in the child’s best interests;

  •   a likely date by which the child may be:

  •   returned to and safely maintained in the child’s home;

  •   placed for adoption; or

  •   placed in a permanent managing conservatorship;

  •   the child’s placement options, both in-state and out-of-state, if the child’s permanency plan no longer calls for reunification with the parents.

Permanency Plan

The caseworker must include information for the court to make findings and determinations about:

  •   the appropriateness of the permanency goals for the child developed in accordance with department rule, and whether DFPS has made reasonable efforts to finalize the permanency plan.

  •   if the child’s permanency plan is another planned permanent living arrangement, whether the child has been consulted about the desired permanency outcome and whether it is the best permanency plan for the child; and

  •   the services required to assist a child aged 14 or older in transitioning from substitute care to successful adulthood and if such services are available in the child’s community.

Medical Care

The caseworker must include information for the court to make findings and determinations about the appropriateness of the child’s medical care including a summary of the medical care as follows:

  •   the nature of any emergency medical care, including any injury or acute illness suffered by the child;

  •   all medical and mental health treatment the child is receiving, and the child’s progress with the treatment;

  •   any medication prescribed for the child; the condition, diagnosis, and symptoms for which the medication was prescribed; and the child’s progress with the medication;

  •   whether a child receiving psychotropic medication has been provided appropriate non-pharmacological interventions, psychological therapies, or behavior strategies to meet the child’s needs, and the dates since the previous hearing of any office visits the child has had with the provider that prescribed the prescription;

  •   the degree to which the child or foster care provider has complied or failed to comply with any plan of medical treatment for the child;

  •   any adverse reactions to or side effects of any medical treatment provided to the child;

  •   any specific medical conditions of the child that have been diagnosed or for which tests are being conducted to make a diagnosis; and

  •   any activity that the child should avoid or should engage in that might affect the effectiveness of the treatment, including physical activities, other medications, and diet.

Texas Family Code §266.007

The caseworker must also include information on whether the child has been provided, in a developmentally appropriate manner, the opportunity to express the child’s opinion on any medical care the child is receiving.

See 11161 Including Medical and Behavioral Health Information in Court Reports

Education

The caseworker must include information for the court to make findings and determinations about:

  •   whether an education decision-maker for the child has been identified; and

  •   whether the child’s education needs and goals have been identified and addressed.

Significant Events

The caseworker must include information about significant events for the child, including:

  •   a placement change, including DFPS’s failure to locate an appropriate placement for at least one night;

  •   a significant change in medical condition;

  •   an initial prescription or change in dosage of psychotropic medication;

  •   a major change in school performance or a significant disciplinary event at school; and

  •   any event determined to be significant under DFPS rules.

Additional Information and Recommendations

The caseworker must also include in the permanency progress report:

  •   recommendations or concerns that DFPS, as the child’s managing conservator, wants the court to consider at the hearing;

  •   any additional information DFPS determines is appropriate and relevant to the court’s findings at the permanency hearing before a final order is rendered;

  •   a determination of whether it is advisable for the child to attend the hearing; and

  •   any other information requested by the court.

42 USC §675(5)(B)(C)

Texas Family Code §§153.375, 263.303, 263.306, 266.007

5536 Obtaining Approval of a Permanency Progress Report

CPS March 2018

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 March 2018

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.

Before the case is closed, the caseworker must address:

  •   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 5730 Foreign-Born Children in Foster Care;

  •   child support issues. See 5340 Seeking Child Support for Children in Substitute Care;

  •   an adjudication of paternity. See 5350 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. See 6453 Consumer Credit Reports;

  •   issues related to ensuring that the child’s or youth’s identity documents 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 March 2018

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 the Hearings and Legal Proceedings Resource Guide.

5542.1 A Final Order in a DFPS Conservatorship Case in General

CPS March 2018

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 March 2018

A final order granting DFPS conservatorship of a child may be subject to modification; however, any modification to a final order requires 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 must discuss the circumstances with the supervisor and the attorney representing DFPS.

Modification requires that the child’s or a conservator’s circumstances have materially changed since the date of the original order. Conservator includes DFPS, a parent who has parental rights, or another party.

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

  •   placing a child in an adoptive home;

  •   a parent’s failure to complete additional services;

  •   a parent’s arrest, death, divorce, or marriage; or

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

Texas Family Code, Chapter 156

5542.3 Required Preparation for Final Hearing

CPS March 2018

To prepare for the final hearing, the caseworker must:

  •   review the entire case file, both internal and external (including the removal affidavit, investigation report, DFPS history, criminal history, psychological evaluations, prior court reports, and all other documentation). When preparing for the caseworker’s specific testimony, the caseworker must contact the attorney representing DFPS;

  •   identify and collect any missing information (such as a disposition of criminal charges, the results of drug tests, a therapist’s recommendations, and probation reports);

  •   review and assess each parent’s compliance (or lack of compliance) with each requirement of the service plan (for example; “Of the 16 drug tests that the parent had scheduled, the parent had four unexcused missed tests, eight clean tests, two tests returned as positive for methamphetamines, and two tests excused for conflicts with court dates.”);

  •   prepare a chronology of the important dates in the case history;

  •   update case information about the child’s current status, including placement, medical, school, therapy, special needs, and all other significant issues;

  •   list facts and evidence that support the permanency goal. Whether the goal is termination of parental rights, permanent managing conservatorship, or another goal, always include the evidence that justifies that the goal is in the child’s best interest;

  •   identify possible witnesses and provide contact information;

  •   meet and confer with the attorney representing DFPS to discuss legal options, evidence, and strategies;

  •   follow up on pretrial preparations requested by the attorney representing DFPS;

  •   determine if regional practice requires the caseworker to take the following actions and then complete them, as appropriate:

  •   check if all parties have been served and verify the date of the return on the proof of service. If all parties have not been served, notify the attorney representing DFPS;

  •   confirm with the court’s clerk the hearing date and time, and notify all of the persons who are entitled to notice;

  •   arrive early for the final hearing to answer any last minute questions and help the attorney representing DFPS identify witnesses.

5543 Extending the Dismissal Deadline

CPS March 2018

To receive an extension beyond the one-year limit for resolving a case, DFPS must present evidence to the court that:

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

  •   remaining in DFPS conservatorship is in the child’s best interest.

Extraordinary circumstances are not defined and are subject to the court’s discretion, but by definition this is not an option for most cases. The caseworker must consult 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 March 2018

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 6212 Permanency Planning.

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 March 2018

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. There may be a monitored return before the reunification, 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 child’s primary residence. However, if an absent parent poses a safety threat, DFPS does not assume that because the parent is temporarily absent, 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 of each parent’s legal relationship to the child, to eliminate as much uncertainty as possible once DFPS is dismissed as conservator.

The caseworker must be prepared to make recommendations on various issues including:

  •   visitation;

  •   child support; and

  •   the schedule for shared custody.

5551.1 Monitored Return of a Child to a Parent

CPS March 2018

For the court 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 it is in the child’s best interest for the court to retain jurisdiction;

  •   orders DFPS to return the child to the parent or transition the child to the parent according to a schedule determined by the department or court while the parent completes the requirements of the case plan as specified in the temporary order;

  •   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. DFPS is not required to wait until the expiration of this period to recommend to the court that the case be dismissed. DFPS may reunify a child, and ask that the case be dismissed as soon as the caseworker determines it is safe and appropriate to do so. This permits the family to end its involvement with DFPS and return to normal when oversight by DFPS 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; 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.

Texas Family Code, §263.403

5551.2 Presumption in Favor of a Parent as Managing Conservator

CPS March 2018

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 child’s best interest to name the child’s parents as the child’s joint managing conservators.

Texas Family Code §153.131

If DFPS does not intend reunification as the outcome for the case, the caseworker must prepare sufficient evidence to show the specific parental conduct that threatens the child’s safety, or otherwise concretely demonstrate why appointing the parent as managing conservator is not in the child’s best interest.

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

CPS March 2018

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 it is not in the child’s best interest to appoint the child’s parent or parents, 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 March 2018

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

  •   share with a prospective conservator Form 0685 Intent To Accept Permanent Managing Conservatorship (PMC), and the You Can Make a Difference in a Child’s Life brochure;

  •   ensure that an agreement for permanency care assistance (PCA) is negotiated and signed before conservatorship is awarded, if the person who will be named conservator qualifies for the assistance;

  •   discuss the differences and benefits of adoption versus managing conservatorship with the person being considered to become the managing conservator;

  •   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 caregiver and that the caregiver is able to safely and appropriately manage the child’s situation and needs;

  •   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.

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.

See 6234.23 Adoption vs. Conservatorship and You Can Make a Difference in a Child’s Life: Adoption or Permanent Managing Conservatorship)

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

CPS March 2018

DFPS always attempts to pursue a preferred permanency option for the child or youth, such as reunification, adoption, or granting 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 support a child’s ultimate permanency goal.

When reunification, adoption, or other permanent placement is not possible within the 12-month time frame established by the Texas Family Code, the caseworker must continue 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 must continue to plan for permanency and seek a permanent legal family for the child. Permanency planning is an ongoing process that continues until a child leaves DFPS conservatorship.

The caseworker must continue efforts 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 March 2018

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

Proof of termination rebuts the presumption that appointing a child’s parents as managing conservator is in the child’s best interest.

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

CPS March 2018

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

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

CPS March 2018

Because naming DFPS as the child’s permanent managing conservator (PMC) without terminating parental rights is generally disfavored, several additional requirements 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 March 2018

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 must:

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

  •   obtain 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 must also consult 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 March 2018

The caseworker must follow the requirements explained in 5572 Agreeing to Accept DFPS Conservatorship Without Termination of Parental Rights.

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

CPS March 2018

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

  •   participate in permanency 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 DFPS 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 March 2018

If DFPS is named as the child’s permanent managing conservator (PMC), the caseworker must continue 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.

5553.4 Requesting a Change in PMC After DFPS Is Appointed

CPS March 2018

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:

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

  •   obtain prior approval from the program director; and

  •   document the decision clearly in the case record (in the monthly evaluations and the child’s service plan in IMPACT).

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