1200 Legal Foundation for Child Protective Investigations and Child Protective Services
CPS June 2021
DFPS policy and practice are governed by specific mandates in federal and state law. These laws define the authority under which the agency operates and set the requirements with which its programs, including Child Protective Investigations (CPI) and Child Protective Services (CPS), must comply.
Federal Law
CPI and CPS are, first and foremost, governed by the U.S. Constitution and federal law related to child welfare. State laws and agency rules are designed to ensure protections of federally mandated rights. These rights include, but are not limited to, those relating to:
- The parent-child relationship.
- Due process.
- The right to be free from unreasonable searches and seizures.
- Other basic rights that are at stake when DFPS is involved in the life of a child, family, or perpetrator.
In addition to the U.S. Constitution, the primary federal laws under which DFPS operates are the following:
- Child Abuse Prevention and Treatment Act (CAPTA).
- Titles IV-B and IV-E of the Social Security Act.
DFPS practices are also governed, in part, by federal laws such as the Americans with Disabilities Act (ADA) and the Public Information Act (PIA).
Titles IV-A, IV-B, and IV-E of the Social Security Act provide federal funding to states, like Texas, with approved state plans for providing child welfare services. Because DFPS receives Titles IV-A, IV-B, and IV-E funding, it must comply with the relevant provisions of the Social Security Act and the Indian Child Welfare Act of 1978.
See:
Child Abuse Prevention and Treatment Act (CAPTA)
Indian Child Welfare Act of 1978
State Law
The primary state laws under which DFPS operates and that are specific to child welfare are in the Texas Family Code and the Texas Human Resources Code. The rules that govern DFPS day-to-day activities are in the Texas Administrative Code.
Additionally, there are a variety of state laws affecting DFPS in other codes that are not specifically related to child welfare. This policy concentrates on the state laws that directly address child welfare and DFPS’s general authority to operate.
1210 State Laws Governing DFPS
CPS June 2021
State laws governing DFPS cover a variety of topics, including but not limited to:
- Defining abuse and neglect and DFPS’s investigatory authority.
- DFPS’s responsibilities to victims of abuse and neglect and to children under DFPS conservatorship.
- DFPS’s rule-making, regulatory, and investigatory authority.
- Necessary services for parents, caregivers, and other alleged perpetrators of abuse and neglect.
- Adoption and interstate placements of children.
1211 Texas Human Resources Code
CPS June 2021
Chapter 40 of the Texas Human Resources Code (HRC) creates DFPS as an agency and provides the framework for DFPS’s powers and duties, including the duty to act on behalf of abused and neglected children. It describes DFPS’s core duties as:
- Providing protective services to children.
- Providing family support and preservation services that respect the fundamental right of parents to control the education and upbringing of their children.
- Implementing and managing programs to provide early intervention services or prevent at-risk behaviors leading to child abuse, delinquency, running away, truancy, and dropping out of school.
Chapter 40 also provides a high-level description of DFPS programs and operations and mandates compliance with specific federal laws. It establishes DFPS as the “single state agency” responsible for administering Titles IV-B and Title IV-E of the Social Security Act and requires compliance with federal mandates to ensure continued receipt and maximization of federal funds for children under DFPS conservatorship.
1212 Texas Family Code
CPS June 2021
The Texas Family Code contains specific provisions about the protection, custody, and conservatorship of abused and neglected children, including identifying DFPS’s responsibilities to abused or neglected children.
1212.1 Texas Family Code Chapter 261 (Legal Definitions of Abuse and Neglect)
CPS June 2021
Texas Family Code (TFC) Chapter 261 contains the legal definitions of child abuse and neglect. It also provides DFPS’s legal authority to investigate allegations of abuse and neglect and to maintain the Central Registry.
Additionally, Chapter 261 outlines responsibilities for abuse and neglect investigations among state and local agencies, including DFPS, and the basic parameters for:
- Receiving reports of abuse and neglect.
- Notifying law enforcement agencies of all child abuse and neglect reports.
- Conducting joint investigations with law enforcement.
- Initiating investigations based on the severity and immediacy of the allegations.
- Documenting and managing casework.
- Seeking assistance from a county or district attorney for failure to cooperate with an investigation.
- Establishing policies and procedures to resolve complaints about, and conduct reviews of, abuse and neglect investigations.
- Establishing investigation standards.
1212.2 Texas Family Code Chapter 262 (Removal of Children)
CPS June 2021
Texas Family Code Chapter 262 outlines DFPS’s authority to remove abused and neglected children from their homes both with and without a court order. It also details the legal standards and proceedings necessary to do either of the following:
- Become a managing conservator of a child who was abused or neglected.
- Take possession of a child who was abused or neglected, missing, or abandoned in emergency and non-emergency situations.
This chapter gives DFPS the authority to:
- File a petition seeking possession of a child.
- File a petition seeking removal of an alleged perpetrator from a home.
- Seek an emergency order authorizing possession of a child.
- Take possession of a child in an emergency without a court order.
Chapter 262 also provides detailed instructions on what DFPS must do after taking a child into its possession and mandates that a full adversary hearing must occur no later than the 14th day after CPS takes a child into possession.
1212.3 Texas Family Code Chapter 263 (Review of Placement of Children in DFPS Conservatorship)
CPS June 2021
Texas Family Code Chapter 263 concerns the temporary or permanent placement of children under DFPS conservatorship. It does the following:
- Mandates that DFPS create permanency plans, with concurrent primary and alternate permanency goals, for every child in DFPS conservatorship.
- Requires the court to conduct permanency hearings within certain time frames and specifies certain issues the court must review at each hearing.
- Specifies deadlines (including the automatic dismissal on the Monday following one year from the date that temporary managing conservatorship is awarded to DFPS unless the court grants an extension) for achieving a final order in a suit affecting a parent-child relationship.
- Provides for the extension of the court’s jurisdiction when a young adult ages out of foster care and certain additional criteria are met.
1212.4 Texas Family Code Chapter 264 (Child Welfare Services)
CPS June 2021
Texas Family Code Chapter 264 contains provisions about protecting children in DFPS conservatorship and while living in substitute care, with special considerations for the placement of children under two years old. It is a broad and comprehensive chapter addressing a range of topics that are all generally related to the following:
- Providing services to children in substitute care and to their families and relative caregivers.
- The proper use of assessment services when determining substitute care placement for a child.
Its provisions relate to eligibility for foster care, the DFPS Kinship Care Program, Permanency Care Assistance, child fatality review teams, parental child safety placements (PCSPs), court appointed special advocates (CASAs), children’s advocacy centers (CACs) and services to at-risk youth.
Among other things, this chapter does the following:
- Describes how DFPS cooperates with county child welfare boards.
- Mandates trauma-informed training for caregivers and DFPS caseworkers.
- Requires DFPS to provide certain records to foster children when they turn 18 and are released from care.
1212.5 Texas Family Code Chapter 266 (Medical Care and Educational Services for Children in DFPS Conservatorship)
CPS June 2021
Texas Family Code Chapter 266 describes medical care and educational services that DFPS must provide for children in DFPS conservatorship. It requires DFPS, in collaboration with HHSC, to manage a medical services system for children in DFPS conservatorship and outlines what the system must include.
Specifically, Chapter 266:
- Mandates comprehensive medical assessments of children and the designation of a “medical home” upon entry into care.
- Authorizes DFPS to designate a medical consenter for a child when DFPS has been named managing conservator, if those rights are not retained by the parent.
- Details the duties and responsibilities of medical consenters, including training they must receive before being allowed to participate in medical appointments, and special factors to be considered before consenting to psychotropic medications for a child.
- Requires judicial review and findings regarding the child’s medical care.
- Allows a youth at least 16 years old to request that the court appoint the youth to be his or her own medical consenter.
- Requires each child in care to have a Health Passport and an Education Passport.
1213 Texas Administrative Code
CPS June 2021
DFPS’s rulemaking authority is established by Title 10 of the Administrative Procedures Act (APA).The following parts of the Texas Administrative Code contain the agency rules under which CPS and CPI operate:
- Title 40, Chapter 700 (Child Protective Services)
- Title 40, Chapter 707, Subchapters A and B (Child Protective Investigations)
These rules do the following:
- Reflect federal and state law as well as CPS and CPI policy.
- Direct CPS’s and CPI’s day-to-day activities.
- Outline procedures for CPS and CPI.
- Explain how people may appeal certain decisions made by CPS and CPI.
Chapter 700 contains rules that pertain to specific subjects, including the following:
- Confidentiality and release of records.
- Eligibility for child protective services.
- Criteria for receiving adoption assistance.
- Purchased protective services to prevent removal or to reunify families.
- Assistance programs for relatives and other caregivers.
- Court-related services.
- Permanency planning.
- Substitute-care services.
- Policies for children in DFPS conservatorship regarding HIV testing and care.
- Foster and Adoptive Home Development.
- Preparation for Adult Living.
- Purchased protective services.
- Interstate placement of children.
- Level-of-care service system.
- Title IV-A emergency assistance program.
Chapter 707, Subchapters A and B contain the following rules that pertain to the CPI program:
- Alternative Response.
- Intake, investigation and assessment of child abuse or neglect allegations.
- Release Hearings.
- School investigations.
1220 The U.S. Constitution and Federal Laws
CPS June 2021
Collectively, the U.S. Constitution and the federal laws pertaining to child welfare establish minimum definitions, standards, and procedures that are reflected in state law and DFPS rules and procedures.
The following constitutional protections are of particular importance to DFPS:
- The Fourth Amendment right to be free from unreasonable search and seizure.
- The right to due process under the Fifth and Fourteenth Amendments.
- The right to equal protection also under the Fourteenth Amendment.
See:
2241 Constitutional Protections Under the Fourth Amendment
5412 Conducting an Emergency Removal Before Obtaining a Court Order
1221 Federal Funding Under the Social Security Act
CPS June 2021
Titles IV-A, IV-B, and IV-E of the Social Security Act provide federal funding for states, like Texas, with approved state plans for the provision of child welfare services. Generally, these funds are used for programs related to child welfare including, but not limited to:
- Permanency
- Family preservation
- Reunification
- Caregiver assistance
- Foster care
- Support for at-risk families
Although states are required to comply with strict requirements governing access to the funds, there is some latitude for child welfare agencies to determine how best to use funds, within certain parameters, for the specific needs of children and families in their state.
1221.1 Title IV-A and Temporary Assistance for Needy Families
CPS June 2021
Title IV-A of the Social Security Act provides grants to states, including Texas, to fund Temporary Assistance for Needy Families (TANF) programs and services. The Texas Health and Human Services Commission (HHSC) is the designated state agency generally responsible for administering funding under the Social Security Act.
However, DFPS manages the following programs and services funded by Title IV-A (TANF) that provide assistance for specific needs to families DFPS serves:
- Family-Based Safety Services (FBSS)
- Protective Child Care
- Relative Caregiver Child Care
- Relative Caregiver Reimbursement
- Services to At-Risk Youth
Additionally, families may also receive emergency (cash) assistance from HHSC to help provide for basic needs such as food, clothing, housing, and utilities. Access to programs and services funded by Title IV-A (TANF) funds is income-based and limited to those meeting eligibility criteria as outlined in the Texas State Plan for TANF.
1221.2 Title IV-B Child Welfare Services
CPS June 2021
Title IV-B of the Social Security Act contains two subparts, Subpart 1 and Subpart 2. States receiving Title IV-B funds under either subpart must draft and follow a state plan assurance explaining how the money is used and the programs and services that are run wholly, or in part, with Title IV-B funds. See 42 U.S.C. 622 for federally mandated state plan requirements.
The state plan must cover a period of five years, and each state must also complete an annual update (the Annual Progress and Services Report). The annual update is required for states to receive their federal allocation of Title IV-B funds, as well as their allocation of federal funds under the Child Abuse Prevention and Treatment Act (CAPTA). The update also gives states an opportunity to apply for funding to support the Chafee Foster Care Independence Program.
Upon the expiration of each five year plan, states are required to submit a new plan and to continue with annual updates.
The DFPS State Plan lays the foundation for, and guides, casework practice throughout CPS and CPI.
1221.21 Title IV-B, Subpart 1 (The Stephanie Tubbs Jones Child Welfare Services Program)
CPS June 2021
Title IV-B, Subpart 1 of the Social Security Act is also known as the Stephanie Tubbs Jones Child Welfare Services Program. It provides grants to states and Indian tribes for programs and services that assist families whose children have been removed or are on the verge of being removed from their homes. The funds are also used for reunifications services and efforts. Programs and services funded under this subpart are available to children and their families without regard to income.
Generally, there is a strong emphasis on using these funds, in combination with state, local, and private funds, to do the following:
- Protect and promote the welfare of all children.
- Prevent the neglect, abuse, or exploitation of children.
- Support at-risk families through services which allow children, where appropriate, to remain with their families or return to their families in a timely manner.
- Promote the safety, permanence, and well-being of children in foster care and adoptive families.
- Provide training, professional development, and support to ensure a well-qualified workforce.
1221.22 Title IV-B, Subpart 2 (Promoting Safe and Stable Families)
CPS June 2021
Title IV-B, Subpart 2, of the Social Security Act is also known as Promoting Safe and Stable Families. It provides funding to child welfare agencies and Indian tribes for programs and services designed to:
- Help prevent the unnecessary separation of children from their families.
- Improve the quality of care and services to children and their families.
- Ensure permanency for children by either reuniting them with their parents or by seeking adoption or other permanent living arrangements such as a permanent managing conservatorship.
States are required to spend most of their allotted Title IV-B, Subpart 2 funds for services that address:
- Family support, including through the community.
- Family preservation.
- Time-limited family reunification.
- Adoption promotion and support.
Funds go directly to child welfare agencies, such as DFPS and eligible Indian tribes, to use in accordance with their state plans.
1222 Title IV-E Payments for Foster Care, Adoption Assistance, and PCA Payments
CPS June 2021
Title IV-E of the Social Security Act provides federal funding to child welfare agencies and eligible Indian tribes to help provide foster care, transitional living programs, adoption assistance, and guardianship assistance.
See:
Title IV-E also provides federal funds for “guardianship assistance.” However, because Texas courts award “conservatorship” instead of “guardianship” in child welfare cases, DFPS uses Title IV-E funds earmarked for “guardianship assistance” to fund its Permanency Care Assistance (PCA) program.
Each child welfare agency, including DFPS, that receives Title IV-E funds for foster care, transitional living programs, adoption assistance, and guardianship assistance, must draft and follow a state plan. The plan includes all applicable state statutory, regulatory, or policy references and citations for each requirement, as well as supporting documentation. Additionally, the plan must be updated when there are significant changes to state programs or in response to changes in federal law.
The Title IV-E Foster Care program helps states and Indian tribes provide safe and stable out-of-home care for children until one of the following happens:
- They are returned to their homes.
- They are permanently placed with adoptive families.
- They are placed in other permanent arrangements by a child welfare agency.
The program provides federal funds for foster care maintenance payments to eligible children in state custody. Children must meet eligibility requirements under Title IV-E, as well as state eligibility requirements, to qualify for benefits under the Foster Care program.
In Texas, the Texas Administrative Code sets the criteria to receive foster care maintenance payments. See 40 Texas Administrative Code, Chapter 700, Subchapter C, Eligibility for Child Protective Services.
The Adoption Assistance Program provides federal funds to facilitate the timely placement of children whose special needs or circumstances would otherwise make it difficult to place them with adoptive families. Eligible children receive Medicaid and a monthly stipend to help adoptive parents meet the child’s needs. Adoptive parents are also eligible for a capped reimbursement of nonrecurring expenses to help offset the cost of adoption.
The Permanency Care Assistance (PCA) program provides financial support to relative or fictive kin caregivers who take permanent legal responsibility for a child who meets the following criteria:
- The caregivers previously fostered the child.
- The child cannot be reunited with his or her parents.
- Adoption is not an appropriate permanency option for the child.
In some instances, Title IV-E funds may also be used to support siblings of eligible children.
See:
1223 Child Abuse Prevention and Treatment Act (CAPTA)
CPS June 2021
The Child Abuse Prevention and Treatment Act (CAPTA) provides federal funding to states and Indian tribes to help prevent, assess, investigate, and prosecute child abuse and neglect, and provide treatment to DFPS clients.
States have wide latitude for determining how to use CAPTA funds but must use the funds for programs and services that improve the child protective services system in a number of key areas, including:
- Improving and enhancing intake, investigations, legal representation, and case management.
- Developing and implementing risk and safety assessment tools and protocols.
- Improving the skills, qualifications, and abilities of child welfare workers and supervisors.
- Developing and implementing training protocols for reporters.
- Providing for legal representation of children (attorneys or guardians ad litem) in judicial proceedings.
Recipients of CAPTA funds, including DFPS, must submit a state plan every five years specifying the use, or intended use, of funds. Recipients must also notify the federal government when there are substantive changes in state law and when there are significant changes to how CAPTA funds are being used.
See:
Child Abuse Prevention and Treatment Act
About CAPTA: A Legislative History (Children’s Bureau’s analysis)
1224 Indian Child Welfare Act
CPS June 2021
The Indian Child Welfare Act (ICWA) is a federal law aimed at keeping Native American children who are involved in child welfare cases with Native American families. The stated intent of the legislation is to protect the best interests of Native American children and to promote stability among Native American families.
ICWA sets federal requirements that apply to state child custody proceedings involving Native American children who are members of, or eligible for membership in, a federally recognized tribe. ICWA establishes standards for removing Native American children from their families and for placing them in foster and adoptive homes. It also allows for a child’s tribe to intervene in the legal proceedings.
A child must meet the criteria of an “Indian child” as defined by federal law in order for ICWA to apply. However, CPS policy requires workers in every abuse or neglect case to determine whether a child or the child’s family has Native American ancestry or heritage. If Native American ancestry is claimed, CPS workers must follow specific procedures to ensure compliance with ICWA.
See:
5740 The Indian Child Welfare Act (ICWA)
For information on CPS policy related to ICWA, see:
Form 1706 Checklist for Compliance with the Indian Child Welfare Act
For information about the ICWA and DFPS’s responsibilities under it, see:
Appendix 1226-B: Checklist for Compliance with the Indian Child Welfare Act
1240 General Eligibility Criteria for Child Protective Services
CPS 96-8
Law
DFPS provides protective services to children as required by the Texas Family Code, Chapters 261 and 262, and the Human Resources Code. DFPS provides services to the families of children receiving protective services under Titles IV-A, IV-B, IV-E, and XX of the Social Security Act, the Intended Use Report, and Chapter 47 of the Human Resources Code.
Texas Family Code Chapters 261, 262
Texas Human Resources Code Ch. 47
Management Policy
To receive child protective services, the child or the child's family must be eligible at the time service is rendered.
The state plans contain the services offered by DFPS. Clients must meet the eligibility criteria for the specific service as detailed in the state plans.
Law
DFPS must not discriminate on the basis of race, color, national origin, sex, religion, or handicap in providing child protective services.
1241 Child Protective Services Priorities
CPS 96-8
Management Policy
DFPS is committed to providing at least minimally adequate protective services to all children who need them. Because of limited resources, however, DFPS must establish priorities for provision of services.
DFPS priorities for child protective services are based on the purposes and objectives of the program. (See 1111 Child Protective Services Mission, Vision, and Values.) By establishing priorities, DFPS has provided statewide criteria for the types of situations and responsibilities DFPS staff respond to before others. The priorities also indicate which children DFPS is not required to serve and which responsibilities DFPS is not required to perform statewide.
Priorities are subject to change.
Priorities for child protective services are listed in the service sections in this handbook and are published yearly in the state plans.
1242 Request for Child Protective Services
CPS 96-8
Management Policy
Parents who believe they have abused or neglected their children may request a child protective services investigation from DFPS. Parents may request child protective services from DFPS to prevent further abuse or neglect or removal of the children.
If DFPS denies, reduces, or terminates requested service, or does not act on the request with reasonable promptness, the parent has the right to an administrative review and a fair hearing.
Cross-references: See
Item 1244, Review of Client Complaints; and
Item 1245, Fair Hearings.
1243 Right to Refuse Services and Consequences of Refusal
CPS 96-8
Rule
A parent's absence or refusal to accept services offered by [DFPS] does not change [DFPS's] legal responsibility to protect children. Parents must not be coerced or defrauded into accepting services but must be notified of the steps [DFPS] may take to protect the children if the parents refuse services.
Parents have the right to refuse services offered by [DFPS] unless a court has ordered the services.
If parents refuse to allow [DFPS] to investigate, [DFPS] may request the county or district attorney to petition the court for an order that requires the parents to allow the investigation. If the allegation of abuse or neglect or other information available to [DFPS] indicates immediate danger to the child, [DFPS] may also seek a court order to remove the child from the home. [See Section 5200 General Issues and Requirements Relevant to CPS Legal Proceedings.]
DFPS Rules, 40 TAC §700.308
1244 Reviews of Client Complaints
CPS February 2021
Note, the complaint process described below is separate from an administrative review of investigation findings (ARIF) that DFPS provides to persons against whom CPI makes a Reason To Believe finding for child abuse or neglect. ARIFs are conducted pursuant to Texas Family Code §261.309(c) and DFPS Rules, 40 TAC §700.516.
See: 1260 Administrative Review of Investigation Findings (ARIF)
Review of Client Complaints
Clients have the right to a review of complaints they have regarding the Child Protective Investigations (CPI) and Child Protective Services (CPS) programs. Depending on the nature of the complaint, the complaint will either be handled by regional staff at a higher level than the worker or DFPS’s Office of Consumer Affairs (OCA).
See: Office of Consumer Affairs Handbook, 2000 Complaints
When review of a client’s complaint is handled by regional staff, the regional staff must review the complaint and respond to the client within 30 days after the client makes the complaint. If the complaint has been routed through the chain of command in the region, including the regional director, and the client is dissatisfied with the outcome, regional staff must inform the client that he or she can further route the complaint to OCA or the DFPS state office program in which the complaint originated for review. Regional staff must provide the client with the contact information for OCA and the state office email address where complaints can be sent. If the client chooses to route the complaint for further review to the DFPS state office program, the client can contact state office or email CPS and CPI with the pertinent information regarding the complaint and request for appeal.
Texas Human Resources Code § 40.0041
Texas Administrative Code §702.801
OCA handles complaints about specific cases relating to DFPS program policy. If an individual believes agency policy has not been followed, OCA may review information provided and DFPS case records to determine if there has been a violation of agency policies. OCA does not review complaints regarding staff conduct or decisions made by DFPS staff, except as it relates to the appeal of a CPI Investigation through the OCA Review process. OCA has 30 business days to review a complaint, and then will provide a response in writing by mail. OCA also notifies regional and State Office administrators of substantive findings.
See: Office of Consumer Affairs Handbook, 5000 Appealing an Administrative Review of Investigation Findings (ARIF)
1245 Fair Hearings
CPS 96-8
Rule
Child protective services clients have the right to a fair hearing if services they request are denied, reduced, or terminated, or if [DFPS] does not act on their request for services with reasonable promptness.
When a worker or supervisor informs a client that requested services have been denied, reduced, or terminated or will not be provided with reasonable promptness, the worker or supervisor must also inform the client
• that the client may request a fair hearing to question [DFPS] action,
• the procedures for requesting a fair hearing, and
• that the client may be represented at the hearing by others including legal counsel.
If requested, the worker must assist the client in completing Form 4800, Request for Fair Hearing.
DFPS Rules, 40 TAC §700.310
Management Policy
The worker must provide the hearing officer with necessary case record material. The reporter's identity must be deleted from case record material given to the hearing officer.
Refer to the Fair Hearings, Fraud, and Civil Rights Handbook for more information about fair hearings.
1250 Clients With Limited English Proficiency (LEP)
CPS December 8, 2003
Title VI of the of the Civil Rights Act of 1964 requires that state and local governments must ensure that their programs and activities normally provided in English are accessible to persons with limited English proficiency (LEP) and that they do not discriminate on the basis of national origin.
Definitions
Limited English Proficiency (LEP): a limitation in the ability of a person whose first language is not English to communicate in English.
LEP Clients: CPS clients whose ability to communicate in English is limited as defined above. The clients may be children, biological parents, foster caregivers, adoptive parents, or other persons deemed responsible for the care, custody, or welfare of the child.
Communicating with LEP Clients
When a client's ability to communicate in English is limited, CPS must undertake reasonable, documented efforts to provide him or her with information and services in a language that the client can understand through the use of interpreters, translators, or other identified methods.
CPS's efforts may include, but are not limited to:
• the recruitment and hiring of bilingual workers;
• the recruitment of bilingual foster caregivers and adoptive parents;
• the use of interpreters and translators; and
• the use of bilingual brochures, forms, and other printed materials.
CPS must undertake reasonable efforts to ensure that LEP clients must understand, as fully as possible, all significant CPS actions at each of the following stages and points of service:
• investigation of allegations of child abuse or neglect;
• adverse actions such as removal of a child from his home;
• case planning and service delivery;
• judicial proceedings in which the court does not itself provide bilingual or interpreter services;
• temporary and permanent placements outside the home; and
• appeal proceedings and administrative reviews.
Note: CPS's efforts to provide bilingual or interpreter services must not delay or interfere with any actions necessary to:
• protect a child from harm or risk of harm; or
• comply with legal requirements.
Ensuring Comprehension of Written Material
Notwithstanding LEP status, a client may have a limited ability to understand material written in his or her own language. When communicating CPS purposes, goals, and services to a client, caseworkers should verbally review written material with the client and the interpreter to ensure that it is fully comprehended.
Family Members / Child Victims as Translators
CPS does not use family members or friends to interpret, translate, sign, or read for LEP clients, except at the client's specific request. Child victims should not be used as translators except for brief interaction to ascertain the client's request and/or arrange requested translation services. Ideally, interpreters and translators will be professionally trained or will be a CPS staff person who is fluent in the client's preferred language.
Documentation
In IMPACT, LEP should be noted in the Person Characteristics Window in all stages of service. Documentation in the case record should include:
• any offer of an interpreter (whether the client accepts or rejects the offer);
• the use of an interpreter;
• the interpreter's name;
• the interpreter's relationship to the LEP person (if any) or professional affiliation;
• the use of any type of communication aids (e.g., a communication board, pictures, etc.)
• the caseworker's ability to communicate in the client's preferred language; and
• the reason an interpreter was not used.
Staff should complete the Translator Services form available on Smiley any time translation services are offered to an LEP client. Staff should ensure that the client signs the form whenever such services are refused. The Translator Services form may be used multiple times in any stage of service.
Substitute Care Placements
When CPS removes an LEP child from his or her home, staff must consider the child's language needs and assess the importance of placing him with a foster family that speaks his own language. Language is not the only factor to consider in placing the child, but it must not be neglected.
The service plan of an LEP child in substitute care must address the following issues:
• communication between the child and the foster family if the foster family does not speak the child's language;
• the availability of bilingual classes and remedial English programs at the child's school;
• the need for and availability of counseling services in the child's language;
• the need for and availability of other services in the child's language; and
• the availability of bilingual CPS staff or interpreters.
If the child is placed in an LEP foster family, the child's service plan must also indicate how CPS staff will communicate with the foster family. CPS must make reasonable efforts to assign bilingual workers to LEP children and LEP foster families. When it is not possible to assign a bilingual worker, staff must find other ways to communicate with the clients. Options include, but are not limited to:
• using other bilingual workers, staff members, or volunteers to interpret;
• working with outside interpreters; and
• working with agencies that specialize in services to families of the foster child's ethnicity.
1251 Clients With Disabilities
CPS October 2019
Title II of the Americans with Disabilities Act of 1990 (ADA) and other federal laws prohibit state and local government entities, such as DFPS, from discriminating against people with disabilities. An individual with a disability cannot be denied benefits or excluded from participation in a public entity’s services, programs, or activities.
See the American With Disabilities Act (ADA).
Scope of the ADA
The ADA covers any child or adult with a disability with whom DFPS interacts. This includes children, parents, relatives or other caregivers, foster and adoptive parents, individuals seeking to become foster or adoptive parents, and others.
1251.1 Definition of a Person with a Disability
CPS October 2019
Under the ADA a person with a disability is an individual who meets one of the following criteria:
• Has a physical or mental impairment that substantially limits one or more of the individual’s major life activities.
• Has a record of such impairment.
• Is regarded as having such an impairment.
For information on eligibility for DFPS services, see 1240 General Eligibility Criteria for Child Protective Services.
For information on effective communication with clients for whom English is not the primary language, see 1250 Limited English Proficiency (LEP).
1251.2 Documentation of Disabilities
CPS October 2019
When an individual informs staff that they have a disability and need accommodations or assistance because of a disability, or staff has reason to believe the person has a disability that requires an accommodation, staff must work with the individual to determine what accommodations are required.
DFPS staff document:
• The type of disability the person has.
• How the services being offered to the client are being modified.
• Those services that require a reasonable accommodation for the person’s disabilities in order for the service to be provided. See 1251.4 Accommodations and Modification to Services.
For more information regarding documentation, see the Working with Persons with Disabilities resource guide.
Investigations staff must provide persons with disabilities written notice of the name, address, and telephone number of the ADA compliance coordinator for DFPS. This information can be found in the Parent’s Guide booklet that is given to every parent during a DFPS investigation.
1251.3 Child Safety Considerations
CPS October 2019
When emergency circumstances require immediate action to protect a child from harm or risk of harm, DFPS staff must not hesitate to protect the child while attempting to communicate with caregivers who have disabilities, including, but not limited to, hearing, vision, or speech disabilities.
Efforts to provide accommodation, including a preferred method of communication, must not delay or interfere with any actions necessary to protect a child from harm or risk of harm, or to comply with legal requirements.
When emergency action must be taken to protect a child, DFPS staff must provide auxiliary aids or services at the earliest possible opportunity to ensure that the individual with a communication or cognitive disability understands as fully as possible all actions taken by DFPS.
1251.4 Accommodations and Modifications to Services
CPS October 2019
Title II of the Americans with Disabilities Act requires that people with disabilities are given an equal opportunity to benefit from all state and local government programs, services and activities. DFPS staff must provide modifications to services as appropriate.
DFPS staff are required to comply with the following:
• Provide reasonable service modifications to parents with disabilities so that the services are as effective as those provided to persons without disabilities in every stage of client services delivery.
• When applicable, use the Family Strengths and Needs Assessment (FSNA) and other tools to identify needs that may require modified services for caregivers with disabilities to reduce the risk of child abuse and neglect.
• Whenever possible and applicable, address in service plans any modification of services needed to:
• Help parents who have disabilities prevent the removal of children from their home.
• Ensure the earliest possible return home for children in conservatorship, when safety threats have been mitigated.
• Make reasonable efforts to coordinate with public and private agencies that provide treatment or support services to caregivers with disabilities.
• Ensure that reasonable efforts to accommodate a parent’s disability have been made before considering termination of parental rights.
• Collaborate with local agencies that serve persons with disabilities to obtain services for families with disabilities.
• When needed, develop a plan that involves the parent identifying a caregiver for his or her children in the event that the parent’s situation deteriorates to the extent that the parent can no longer assure the safety of the child. DFPS staff must ensure that the caregiver identified by the parent has the ability to provide a safe, healthy environment for the child.
1251.5 Requirements for Auxiliary Aids and Services
CPS October 2019
Auxiliary aids and services are devices or services that facilitate communication and access to services for a client with any type of disability. DFPS staff must furnish auxiliary aids or services (explained further in the Working with Persons with Disabilities Resource Guide) as necessary to ensure effective communication and accommodations for clients who are being served or investigated by DFPS. Auxiliary aids and services may be provided for persons with disabilities that include, but are not limited to, hearing, vision, and speech disabilities,
DFPS staff must ensure that communications with clients who have disabilities are as effective as communications with other clients, and that clients understand all significant DFPS actions as fully as possible at each stage of service.
1251.6 Sign Language Interpreter Requirements during DFPS Interventions
1251.61 Obtaining Qualified Interpreters
CPS March 2021
The Americans with Disabilities Act (ADA) defines a qualified interpreter as one who is “able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”
DFPS staff may contact one of the contracted providers to request appropriately certified interpreters. When a client requests an interpreter or other auxiliary aid or service, DFPS staff must do the following:
- Document the request clearly in IMPACT and the client’s case record.
- Include the need in any service plan throughout the life of the case.
Instances requiring interpreter services include, but are not limited to, the following:
- Interviews, meetings, or any contacts with the client.
- Face-to-face contacts.
- Supervised visitation.
- Permanency planning meetings.
- Family Group Conferences and Family Team Meetings.
- Trainings and meetings involving adults who are deaf or hard of hearing and are interested in becoming foster parents.
- Court hearings (see 1251.63 Certified Interpreters Required for Court Hearings).
DFPS and HHSC (formerly DARS) have an interagency contract that allows DFPS to work with HHSC sign language providers. DFPS staff takes the following actions:
- Should arrange to use an interpreter at the highest appropriate level available certified by either:
- The Board for Evaluation of Interpreters (BEI)
- The Registry of Interpreters for the Deaf (RID)
- Must choose only from among the providers who appear on the Interpreter List on the HHSC website and are located within the DFPS region where the service is needed.
- Must complete Form 2239 DFPS Request for Sign Language Interpreting Services located on the DFPS intranet).
- Must provide the completed form to the regional liaison for the appropriate program (see Regional Liaisons for Translation Services on the DFPS intranet) to assist in service tracking.
BEI makes recommendations on the type of interpreter that should be used for various settings. For abuse and/or neglect investigations, the BEI recommends using Level IV, Level IV Intermediary, Level V, Level V Intermediary, Master, Trilingual Advanced, or Trilingual Master. Using one of the recommended levels of interpreter services meets the ADA definition of a qualified interpreter. Staff may ask to see the interpreter’s certification cards to determine the interpreter’s certification level. For more information about certification levels, visit How to Select the Right Sign Language Interpreter on the Texas Health and Human Services website.
1251.62 Prohibition against Using Family Members, Friends, or Child Victims as Interpreters
CPS October 2019
DFPS does not use family members or friends to interpret, translate, sign, or read for Limited English Proficiency (LEP) clients, except at the client's specific request. Even if the client does make the request, DFPS staff should not use family members or friends for the purposes of assessing or communicating safety or service planning.
Child victims must not be used as translators except for brief interaction to ascertain the client's request or arrange requested translation services. Ideally, interpreters and translators will be professionally trained or will be a DFPS staff person who is fluent in the client's preferred language.
Victims and their family members or friends rarely meet the impartiality requirements of a qualified interpreter as defined by the ADA. DFPS staff should not use them as interpreters unless one of the following situations applies:
• There is an emergency involving imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.
• The individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and relying on that adult is appropriate under the circumstances.
1251.63 Certified Interpreters Required for Court Hearings
CPS October 2019
DFPS staff are required to notify the court when interpretation services are needed. Courts are required to provide interpreter services for persons who are deaf or hard of hearing during court hearings and other proceedings.
The interpreter must hold:
• A Court Interpreter Certification (CIC) from the Board for Evaluation of Interpreters (BEI); or
• A current legal certificate issued by the National Registry of Interpreters for the Deaf.
Texas Government Code, Chapter 57
Contact information for current holders of the CIC is located on the Board for Evaluation of Interpreters (BEI) Registry on the HHS website.
Prompting the Court to Provide an Interpreter
Although the requirement to provide an interpreter applies to the court and not DFPS, if the court has not indicated plans to provide an interpreter with the required certification, then DFPS must request that the attorney representing DFPS notify the court of the requirement.