Information Before Filing Suit

INFORMATION BEFORE FILING SUIT

Purpose of an Aid to Investigate

If a person interferes with an investigation of a family or CPS has reason to anticipate interference during an investigation, the agency can seek a court order to compel cooperation with specific components of the investigation.3 Court intervention is specifically authorized, upon a showing of good cause, to:

• Gain access to a home, school or any place where a child may be;

• Obtain a medical, psychological or psychiatric exam (or to obtain the records of such an exam).

If a parent refuses to consent to the caseworker’s entry into the home or to allow an interview or examination of a child, a Court Order to Aid Investigation is one option to pursue. Interference with an investigation can result in a criminal penalty.

A Petition for Order in Aid of Investigation of a Report of Child Abuse

Applicable Texas Family Code Statue Sections:

§261.301 – The Department is required to investigate reports of child abuse or neglect

§261.303 – The Department requires a court order permitting entrance for interview, examination, and investigation.

§261.306 – The child may be removed from the state and requires a restraining order prohibiting the children’s removal from the jurisdiction.

Information necessary for filing a petition (to be included in the Department’s affidavit):

The date of the allegation received by the Department.

The intake received by the child abuse hotline.

The correct names and identifying information for the children living in the household.

The correct address where the children are currently residing.

The name of the adults in the home who have hindered investigation.

Why the department believes that the petition is necessary to complete the investigation?

Order to Participate

If a family has refused services or is not cooperating with services, or the weight of the court's authority is desired to bolster a family's chance for success, court ordered services can be an effective solution. The court may order a parent to participate in services that DFPS provides or purchases to alleviate the effects of abuse or neglect or to reduce the reasonable likelihood of abuse or neglect in the immediate or foreseeable future. The caseworker must be able to set out the facts that meet this standard. If the court denies a request to order participation, the court must specify its reasons in writing. A parent’s failure to comply with court-ordered services is relevant evidence at trial.

A Petition for Order to Participate in Services

Applicable Texas Family Code Statue Sections:

§264.203 -The Department is requesting the court order the Respondent to participate in services the Department provides for alleviating the effects of abuse or neglect, and to permit the child and any siblings of the child to receive services.

Information necessary for filing a petition (to be included in the Department’s affidavit):

The initial referral received by the Department via the child abuse hotline.
The details of the investigation that has been completed.
Details of the service plan that has been developed for the family.
The services requested by the Department for the parents and/or the child/ren.
That the parent has either refused or failed to attend the services requested by the Department.
The correct names of the parties to the case.
The current address for the parties, and the children.

Ex Parte Order before Removal

In the first option, CPS obtains a court order before removal of the child. In the second option, CPS has determined that the child is in immediate danger (exigent circumstances) and the child must be removed from the home. A court order is then obtained after the exigent circumstances removal. A comparison of the statutory language and case law interpretation between an ex parte order before removal and an exigent circumstances removal prior to obtaining an ex parte order reveals that the language is markedly similar. In the first instance, CPS must show "immediate danger to the physical health or safety of the child OR that the child has been a victim of neglect or sexual abuse" (among other requirements); and in the second instance, CPS must show that “based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if he remains in his home.”

Fourth Amendment case law presumes a preference for the state to obtain advance approval from a neutral magistrate before taking action to "search" or "seize." To justify taking action without prior court approval, the state must meet a higher evidentiary threshold. This distinction is implicit in the Gates opinion, but the court does not elaborate how these standards compare. The time frames a court considers under these two options are significantly different. With a request for a court order before removal of a child, the court need only conclude there is not time consistent with health or safety of the child for a full adversary hearing, a hearing generally set at least fourteen days after a removal. In contrast, for a removal of a child without a prior court order, CPS must show there was no time consistent with the child's health or safety to obtain an ex parte order, which could be obtained within hours or one or two days. As detailed below, the lapse of time necessary to obtain a prior court order is a primary factor in the totality of the circumstances analysis for purposes of "exigent circumstances." Without question timing is critical to any assessment of child safety.

Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship

Applicable Texas Family Code Statue Sections:

§262.101 – The Department can request permission of the court to take possession of the child/ren without prior notice and a hearing.

§262.104 – Before a court may issue a temporary restraining order the court must find that there is an immediate danger, there is no time for a full adversary prior to taking possession of the child/ren, and that reasonable efforts have been made to prevent the removal.

§262.201 – at the adversary hearing the court should render temporary orders and appoint the Department the Temporary Managing Conservator of the child/ren.

§263.106 – a provision ordering the parents to comply with the service plans during the pendency of the suit.

§263.404 – If the child cannot be reunified with either parents or with a relative permanently, that the Court appoints the Department as the permanent sole managing conservator of the child.

§161.001 A-T, §161.003, §161.006, §161.007 – termination grounds for the legal parents

§161.002 – Termination grounds for the alleged father or unknown father

§107.012 – Appointment of an attorney ad litem for the child

§107.011 – Appointment of a guardian ad litem for the child

§107.013 – Appointment of an attorney ad litem for an indigent parent

Emergency Ex Parte Order After Removal

CPS can only remove a child without a prior court order if based on the totality of the circumstances there is a reasonable cause to believe that the child is in imminent danger of physical or sexual abuse.

The Gates ruling makes clear that CPS can only do emergency removals without a court order if the danger is truly imminent and only if it is tied to physical or sexual abuse. To believe that a child is in imminent danger, CPS must have reason to believe that life or limb is in jeopardy or that sexual abuse is about to occur.

Applicable Texas Family Code Statue Sections:

§262.105- When a child is taken into possession without a court order, the person taking the child into possession, without delay shall, file a suit affecting the parent-child relationship, request the appointment the appointment of an attorney ad litem for the child, and request a hearing no later than the first working day after removal.

§262.201 – Unless the child/ren has been returned to the parent, or conservator, a full adversary hearing shall be held not later than the 14th day after the sate the child was taken into the possession of the Department. At the adversary hearing the court should render temporary orders and appoint the Department the Temporary Managing Conservator of the child/ren.

§263.106 – a provision ordering the parents to comply with the service plans during the pendency of the suit.

§263.404 – If the child cannot be reunified with either parents or with a relative permanently, that the Court appoints the Department as the permanent sole managing conservator of the child.

§161.001 A-T, §161.003, §161.006, §161.007 – termination grounds for the legal parents

161.002 – Termination grounds for the alleged father or unknown father

§107.012 – Appointment of an attorney ad litem for the child

§107.011 – Appointment of a guardian ad litem for the child

§107.013 – Appointment of an attorney ad litem for an indigent parent

Non-Emergency Removal

To obtain a non-emergency order before removal of a child, CPS must show:

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

• Reasonable efforts were made to prevent or eliminate the need for removal;

• Appointment of the parent or parents as temporary managing conservator of the child is not in the best interest of the child because appointment of the parent as conservator would significantly impair the child's physical, health, or emotional development;and

• Placement with a noncustodial parent or another relative is not in the best interest of the child.

§262.113 – A suit filed by a governmental entity that requests to take possession of a child after notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence and caution that:

1.) reasonable efforts have been made to prevent or eliminate the need to remove the child from the child’s home; and

2.) allowing the child to remain in the home would be contrary to the child’s welfare.

§262.201 –At the adversary hearing the court should render temporary orders and appoint the Department the Temporary Managing Conservator of the child/ren.

§262.205 – In a suit requesting possession of a child after notice and hearing, the court may grant the Department’s request to remove the child from the parent, managing conservator, or other person entitled to possession of the child if the court finds sufficient evidence that reasonable efforts have been made to prevent the removal that allowing the child to remain in the home would be contrary to the child’s welfare.

§263.106 – a provision ordering the parents to comply with the service plans during the pendency of the suit.

§263.404 – If the child cannot be reunified with either parents or with a relative permanently, that the Court appoint the Department as the permanent sole managing conservator of the child.

§161.001 A-T, §161.003, §161.006, §161.007 – termination grounds for the legal parents

161.002 – Termination grounds for the alleged father or unknown father

§107.012 – Appointment of an attorney ad litem for the child

§107.011 – Appointment of a guardian ad litem for the child

§107.013 – Appointment of an attorney ad litem for an indigent parent

DUE PROCESS:

Parents have a fundamental constitutional right to their children. Under 262.109 of the Texas Family Code – The Department must be give written notice to each parent of the child/ren when the Department takes possession of a child under Chapter 262. Under the Texas Civil Rules of Procedure Rule 21 each party is entitled to notice of a suit filed against them, service, and a copy of the pleadings filed with the court.

Rule 106 of the Texas Rules of Civil Procedure states that a true copy of a citation along with a copy of the petition shall be delivered to the Respondent in any case.

Personal citation is always preferred in suits filed by the Texas Department of Family and Protective Services. The due diligence of the Department in their efforts to locate a parent whose whereabouts are unknown is reviewed at every hearing under §263.202 and §262.306 of the Texas Family Code. When the parents’ location is unknown the Department must exercise efforts to locate the parents before the State can proceed to alternate means of service, most commonly by publication or posting.

A case cannot proceed to finalization without service in some form to all parties plead in the case.

DUE DILLGENCE:

Due diligence on the part of the Department:

A caseworker makes a diligent (reasonable, detailed) search for a parent:

• to serve notice; and

• to enable the parent to evaluate placement options.

The caseworker also makes a diligent search for relatives to identify potential caregivers with whom to place the child.

See:

2540 Notification to Relatives Following a Removal

6123 Locating Relatives and Providing Notice of Removal

Step 1: Ask the Custodial Parent About the Absent Parent

The caseworker asks the custodial parent to provide information about the absent parent, as explained below.

If the custodial parent is uncooperative about providing information, the attorney representing DFPS can obtain a subpoena requiring the custodial parent to serve as a witness to testify about his or her knowledge of the absent parent and the relatives of the absent parent.

Identifying Information

The caseworker asks for identifying information, such as the absent parent’s:

• name;

• date and place of birth;

• Social Security number; or

• driver’s license information

Events and Personal History

The caseworker asks the custodial parent about the absent parent’s personal history, as follows. When inquiring about locations, the caseworker asks about the city, county, and state:

• What is the hometown of the absent parent?

• Where did the parents meet?

• Who is or was the absent parent’s employer?

• What schools did the absent parent attend?

• When and where did the parents marry?

• When and where did the parents separate or divorce?

• Is or was the absent parent in the military? If so, what branch, rank, and so on?

Other Children

The caseworker asks whether the absent parent has other children. If so, the caseworker asks for their:

• names;

• ages;

• addresses;

• dates and types of the last contacts with the absent parent; and

• other parents’ (names, addresses, and phone numbers).

Other Family Members

The caseworker asks who else, related (such as parents, siblings, aunts, and uncles) or unrelated, may be able to provide information about the absent parent.

If the custodial parent provides other contacts, the caseworker asks for the contacts’:

• names;

• addresses; and

• phone numbers.

Specifically, the caseworker:

• interviews children to find out what they know about the absent parent;

• interviews relatives of the custodial parent to find out what they know about the absent parent;

Review Data

In addition to interviewing contact persons, the caseworker also:

• reviews all case information in the IMPACT case management system;

• reviews the case files for information that could help locate the absent parent; and

• makes queries using free public search sites.

References:

The Texas Rules of Civil Procedure

The Texas Family Code

The Texas Department of Family and Protective Service – practice guide

The Texas Department of Family and Protective Services – handbook