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5700 Special Issues

5710 Interstate Compact on the Placement of Children (ICPC)

5711 Priority Handling for Interstate Placements With Certain Relatives or Guardians

CPS March 2018

See 4512 Expedited ICPC Home Screening.

5711.1 Required Actions to Request a Court Order for an Expedited Placement Decision Pursuant to Regulation 7

CPS March 2018

If the child meets the criteria for a priority home screening, the caseworker must:

  •   complete Form ICPC105 ICPC Criteria for Priority Home Screening; and

  •   submit the completed form to the attorney representing DFPS.

The attorney representing DFPS must:

  •   prepare the appropriate motion and order; and

  •   submit the motion and order to the Court.

The caseworker must prepare to testify regarding:

  •   the information in the form; and

  •   any other information relevant to the requested placement.

See 4512 Expedited ICPC Home Screening for:

  •   criteria for requesting an expedited placement decision; and

  •   steps the caseworker must take, after the court signs the order, to submit the request packet to the other state.

5720 Court-Related Requirements for Travel by a Child in DFPS Conservatorship

CPS March 2018

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.

6471.2 Out-of-State Travel Approval

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.

6471.2 Out-of-State Travel Approval

5730 Foreign-Born Children in Foster Care

CPS March 2018

Legal and programmatic issues 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 6715.1 Giving Notice to a Foreign Consulate.

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, and placing children in foreign countries, see Section 6700 International and Immigration Services.

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.

5740 The Indian Child Welfare Act (ICWA)

5741 Identifying ICWA Cases

CPS March 2018

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

The law applies if a child is an unmarried person under age 18 who is either:

  •   a member of a federally recognized tribe; or

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

DFPS must not wait for a parent or family member to offer information but must ask parents, family members and any child old enough about possible Native American family history. Even if the family has no information about tribal membership, if there is any Native American family history a child must be considered a possible Native American child. To find out if a child has Native American family history, the caseworker must routinely ask:

  •   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 must routinely ask, throughout the case, if 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 must document 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 a child, parent, or extended family member reports possible Native American family history, the caseworker must:

  •   complete Form 1705 Indian Child and Family Questionnaire;

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

  •   inform the court in the next hearing.

The caseworker must provide as much information as possible on Form 1705 to enable the tribe to determine if a child is a member of the tribe or is eligible for membership in the tribe.

5742 Decision Regarding Native American Status

CPS March 2018

If there is any indication that a child’s family may have a tribal connection, the caseworker must provide the relevant information to the tribe and ask the tribe to confirm or deny eligibility.

5743 Legal Requirements If the ICWA Applies

CPS March 2018

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

  •   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 caregivers, 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 1705 Indian Child and Family Questionnaire

Form 1706 Indian Child Welfare Act Checklist

5750 Judicial Bypass Alternative to Notifying a Parent About Abortion

CPS March 2018

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

  •   without notifying her parent, guardian, or conservator; and

  •   without seeking permission from, or notifying, DFPS.

See Texas Family Code, Chapter 33, Notice of Abortion.

All court proceedings under Chapter 33 must be conducted in a manner that protects the minor’s anonymity. 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 minor’s interest.

Texas Family Code §33.003(k) and (l)

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

11740 Pregnancy and Abortion

11741 If a Youth Is Pregnant

11742 Informing Parents and Caregivers About Abortion-Related Information

11743 If DFPS is Appointed as Guardian Ad Litem for a Youth Who Has Applied for Judicial Bypass

11744 Documenting Pregnancy and Abortion-Related Information for Youth in Conservatorship

5751 DFPS Appointment as Guardian Ad Litem

CPS March 2018

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 a circumstance, the caseworker must immediately notify his or her regional managing attorney for further instruction.

If the pregnant minor seeking a judicial bypass is in DFPS conservatorship, DFPS cannot also serve as the guardian ad litem. If a court plans to or appoints DFPS as a guardian ad litem in this situation, the caseworker must notify the regional managing attorney for further instruction.

Texas Family Code §33.003(f)(3)

5751.1 Record of Guardian Ad Litem Appointment

CPS March 2018

Format

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

  •   entering an automated referral in IMPACT; 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 must not be released to persons who are otherwise entitled to DFPS records.

Texas Family Code §33.003(k).

Retention

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

The caseworker must:

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

  •   destroy the record in a manner that protects confidentiality.

5760 Social Studies

CPS March 2018

See the Hearings and Legal Proceedings Resource Guide for general information on Social Studies.

5761 Orders for DFPS to Conduct a Home Screening in a Case to Which DFPS Is Not a Party

CPS March 2018

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.

5770 Prior Out-of-State Orders Regarding Children

CPS March 2018

If a child has previously been the subject of a court order related to paternity or custody in another state, this may affect whether or not a Texas court has authority to act beyond exercising temporary emergency jurisdiction.

Texas Family Code §152.203-204

The caseworker must always ask parents about any prior orders from another state and request copies or at least as much information as possible about the date and place where the order was entered. In this circumstance, the caseworker must consult with the attorney representing DFPS.

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