5200 Notice, Service, and Working with Attorneys and Advocates
CPS March 2018
The items under Section 5200 and its companion section 5300 Court Orders, Notice to the Court, Indian Child Welfare Act, Paternity, and Child Support cover issues and requirements that generally relate to any DFPS legal proceeding or multiple types of proceedings.
5210 General Caseworker Duties and Restrictions
CPS March 2018
The caseworker must:
• cooperate with the attorney representing DFPS; and
• follow the requirements outlined in the items under 5200 Notice, Service, and Working with Attorneys and Advocates and 5300 Court Orders, Notice to the Court, Indian Child Welfare Act, Paternity, and Child Support.
The caseworker must also support DFPS litigation by:
• appearing as a witness in any hearing where the caseworker’s presence is requested;
• preparing for the hearing, but not bringing the entire record to the hearing unless it has been subpoenaed. If the record has been subpoenaed, the caseworker must follow DFPS Subpoena Policy and Procedures. If the record has not been subpoenaed, the caseworker must consult with the attorney representing DFPS about using a brief summary document;
• cooperating with discovery requests following the attorney’s advice;
• providing information to the attorney representing DFPS, so that the attorney can draft, review, and finalize legal documents.
Unauthorized Practice of law
The caseworker must never:
• provide legal advice to the clients involved in the DFPS case;
• attempt to help clients draft or complete legal documents, such as documents giving powers of attorney and declarations of guardianship.
In some situations, a caseworker may provide clients with a form, such as Form 2638 Authorization Agreement for Nonparent Relative or Volunteer Caregiver, but the caseworker must only explain basic content and not interpret the law for the person completing the form.
Interpreting or providing advice on the law, including drafting legal documents, by any person other than a licensed attorney is considered the unauthorized practice of law. An unauthorized practice of law can result in a lawsuit by either the Unauthorized Practice of Law Committee of the Texas Supreme Court or the person aggrieved by the conduct.
5220 The Child’s Best Interest
CPS March 2018
In determining what action is in the best interest of the child, the caseworker must consider any fact relevant to an individual child’s safety and permanency.
This includes, but is not limited to:
• the child’s desires;
• the child’s present and future emotional and physical needs;
• the child’s present and future emotional and physical danger;
• the parenting abilities of persons seeking custody;
• the programs available to assist the persons who are seeking custody;
• the plans for the child by the persons seeking custody or by DFPS;
• the stability of the home or proposed placement;
• any parental acts or omissions that show that the relationship is not proper;
• any reason for the parent’s acts and omissions.
Holley v. Adams, Texas Supreme Court, 1976
The caseworker must also consider the specific factors listed in the Texas Family Code §263.307.
The caseworker must identify the facts about an individual child that are important, such as:
• the child’s exposure to domestic violence, substance abuse, or criminal activities;
• the child’s abuse and neglect history;
• the child’s emotional, medical, educational, therapeutic, social, or cultural needs;
• the child’s special needs or developmental delays, if any; and
• any other important information about how to best meet a specific child’s needs for safety, stability, and permanency.
5230 Service of a Citation
CPS March 2018
The caseworker must review regional protocols and consult with the attorney representing DFPS to determine who serves the parties with a citation for an original suit affecting the parent-child relationship (SAPCR).
While local protocols will determine the caseworker’s role, the following persons are entitled to be served with a citation:
• Each parent (including an alleged father), unless the parent’s rights are terminated or a parent signs a waiver of service
• A managing or possessory conservator, guardian, or other person with court-ordered access to the child
• A prospective adoptive parent with standing or a conservator designated in an affidavit of relinquishment
• The Texas Attorney General’s Office or any other child-support agency (if child-support payments may be affected)
Serving a citation for a lawsuit is not the same as providing notice of a hearing. For details, see 5234 Providing Notice of a Hearing.
5231 Purpose of Serving a Citation for a Lawsuit
CPS March 2018
A citation for a lawsuit is not the same as a notice of a hearing. A citation for a lawsuit is served to:
• notify a person that he or she is a party to a lawsuit; and
• explain the person’s involvement in the lawsuit.
A person has a constitutional right to be notified about a lawsuit that may impact his or her rights.
If DFPS asks a court to give the department custody of a child (and possibly to terminate parental rights), a parent’s fundamental right to parent a child is at issue. For that reason, the caseworker must always use due diligence (that is, make a diligent effort) to find missing parents.
5232 Caseworker Requirements Related to Missing Parents
CPS March 2018
The caseworker must:
• complete Form 2277 Request for Diligent Search, to help the attorney representing DFPS initiate a diligent search request to locate missing parents or get identifying information to serve the parents with a citation; and
• make a diligent search to locate:
• each missing parent; and
• a parent, a grandparent, or any adult sibling or child of each missing parent.
DFPS Rules, 40 TAC §700.1105
5233 Exercising Due Diligence to Locate Missing Parents and Other Relatives
5233.1 Overview of Due Diligence: Making a Diligent Effort to Locate Missing Parents and Relatives
CPS March 2018
The caseworker must exercise due diligence to locate missing parents and relatives, regardless of how likely it appears that the parent wishes or does not wish to remain involved in the child’s life. The caseworker must not rely on the custodial parent’s statements about the missing parent’s interest, suitability, wishes, and so forth.
The caseworker must exercise due diligence at the beginning of the case and throughout the life of the case.
The caseworker must also exercise due diligence if a parent disappears, or if new information becomes available that would help locate a parent who has not yet been located.
Due diligence is the effort that would be made by someone who really wants to find a missing person. It is measured not by quantity, but by quality. While caseworkers need not use all possible or conceivable means of discovery, they must make a reasonable search.
A reasonable search is an inquiry that a reasonable person would make, and it must extend to places where information is likely to be obtained and to persons who, in the ordinary course of events, would be likely to have information on the person or the entity sought. Therefore, while the caseworker must follow the steps outlined in this policy to attempt to locate a missing parent, it is essential that all searches be guided by common sense when inquiring about the people most likely to have the information sought. For example, common sense would not support failing to personally serve a citation to a mother who shows up to the DFPS office for visits but whose phone is no longer working and cannot be found at her address.
The requirement to exercise due diligence applies, regardless of whether it is likely that the parent wishes to remain involved in the child’s life. The caseworker does not rely on statements by the custodial parent regarding the missing parent’s level of interest, suitability, wishes, and so forth. It is important for the missing parent to be located, whenever possible, for the court to resolve questions of paternity, maternity, and parental rights.
5233.2 Court Monitoring of Due Diligence
CPS March 2018
A caseworker must be prepared to demonstrate to the court that he or she has exercised due diligence to locate missing parents or relatives:
• at the 60-day status hearing;
• at each permanency hearing;
• before the court enters a final order for termination of parental rights or appoints DFPS as permanent managing conservator, or both.
5233.21 Requirements When a Parent Is Not Located Before the Status Hearing
CPS March 2018
At the 60-day status hearing, if a parent has not been served with a citation or has not been located, the caseworker must get written confirmation to show whether the missing parent is serving in the military. The Service members Civil Relief Act (SCRA) requires confirmation of military service to protect members of the military from judgments taken while they are on active duty.
To obtain confirmation, the caseworker must:
• complete Form 2277 Diligent Search for Missing Parent;
• submit Form 2277 to the FINDRS mailbox for the DFPS Family Inquiry Network/Database Research System (FINDRS).
FINDRS conducts a search and provides the caseworker with a military service status report.
The caseworker must:
• complete Form 2068 Affidavit Regarding Military Service; and
• submit Form 2068 to the court with the attached status report.
5233.3 Making a Diligent Search for a Missing Parent
CPS March 2018
The caseworker must take the steps explained in the following items to search for a missing parent. The caseworker always uses common sense in attempting to locate a missing parent.
5233.31 Asking the Custodial Parent for Absent Parent Information
CPS March 2018
The caseworker must ask the custodial parent to provide information about the absent parent. See the Court-Related Processes and Legal Appointments Resource Guide, under Information to Ask the Custodial Parent to Provide.
If the custodial parent is uncooperative, the caseworker must consult with the attorney representing DFPS to determine whether to obtain a subpoena, requiring the custodial parent to testify about his or her knowledge of the absent parent and the absent parent’s relatives.
Reviewing Data
In addition to interviewing contact persons, the caseworker must:
• review all case information in IMPACT;
• review the case files for information that could help locate the absent parent; and
• make queries using free public search sites.
5233.32 Requesting a Diligent Search
CPS March 2018
If the absent parent cannot be found, the caseworker must refer the case to the DFPS Family Inquiry Network/Database Research System (FINDRS), which has access to several data search programs.
See the Court-Related Processes and Legal Appointments Resource Guide, under Requesting a FINDRS Search.
Attempt to Contact the Parent or Continue Searching
Using the information returned from FINDRS, the caseworker must:
• attempt to contact the parent; or
• continue looking for the parent through other resources.
5233.33 Searching for Residents of a Foreign Country
CPS March 2018
If the absent parent is believed to be living in a foreign country, the caseworker must:
• ask family members in the United States for contact information;
• contact the consulate of that country; and
• request assistance in locating the absent parent.
If the absent parent is believed to be living in Mexico, follow the policies in 5233.61 Due Diligence Search for a Person Believed to Be in Mexico.
5233.34 Attempting Contact by Mail
CPS March 2018
If attempting to contact the missing parent through the postal system, the caseworker must use one of the letters approved for diligent searches.
The caseworker must only use approved form letters to contact various entities that might have information, such as the electric company.
If an address appears to be valid for an absent parent, the caseworker must send:
• one letter through regular mail; and
• one letter with a return receipt requested, to document if the address is valid.
The return receipt documents the attempt to validate the address.
5233.35 Continuing to Search
CPS March 2018
The caseworker may also request a state and federal search through the Parent Locator Service offered by the Texas Office of the Attorney General (OAG). FINDRS is the official liaison between caseworkers and the OAG, and handles all coordination with the OAG for this service.
See the Court-Related Processes and Legal Appointments Resource Guide, under Requesting a Search through the OAG Parent Locator Service.
The caseworker must also use the information obtained to make inquires through other resources that may help locate the absent parent. See the Court-Related Processes and Legal Appointments Resource Guide, under Additional Search Resources.
5233.36 Notifying Parties Involved That the Parent Is Located
CPS March 2018
The caseworker’s next steps depend on the results of attempting to make contact or find additional information.
If the Parent Is Located
If the caseworker locates the absent parent, the search process stops and the caseworker must notify the parties involved in the case.
If No Information Is Obtained
The caseworker must complete an Affidavit of Diligent Search and present it to the court if:
• no positive matches are made in the attempts to locate the absent parent; and
• no further identifying information has been obtained that could help locate the person.
If Additional Information Is Obtained
If the caseworker obtains additional information, the caseworker must repeat the diligent search using the new information. The caseworker does not complete the Affidavit of Diligent Search.
5233.37 Repeating Diligent Search With New Information
CPS March 2018
If the caseworker obtains new information that might help locate the individual, the caseworker must resubmit an updated Form 2277 Request for Diligent Search to the FINDRS mailbox as quickly as possible. In the subject line of the email, the caseworker must include the name of the oldest child and the cause number for the case (as issued by the court).
It can take FINDRS staff up to 30 days to complete the search.
The caseworker must continue searching for the individual, using the new information.
5233.4 Additional Requirements When Locating an Alleged Father
CPS March 2018
The caseworker must conduct diligent searches to identify and locate any alleged biological father of a child, if a child has one or more alleged biological fathers:
• whose identity is unknown (in this instance, the caseworker must make efforts to determine each alleged biological father’s identity by asking principals or collaterals in the case if they have information on the father’s identity); or
• whose identity is known, but whose whereabouts are unknown.
The search must involve:
• a search of the DSHS Paternity Registry; and
• other diligent efforts.
Paternity Registry Search
The diligent effort must include a request to search the Paternity Registry of the Department of State Health Services (DSHS), a division of the Bureau of Vital Statistics. A paternity registry search is part of a diligent search, but is not sufficient by itself.
DFPS Rules 40 TAC §700.1105.
See the Court-Related Processes and Legal Appointments Resource Guide, under Requesting a Paternity Registry Search.
Upon completing the search, the Paternity Registry provides a certificate:
• identifying a man who has registered; or
• stating that there is no finding relating to the man in question on the paternity registry.
The certificate must be forwarded to the attorney representing DFPS and filed with the court. If a man has registered, he is entitled to notice of all future hearings and may appear and assert his paternity. If the certificate shows no one has registered, this is essential to the court’s ability to enter a final order.
Other Diligent Efforts
In addition to the paternity registry search, the caseworker must use her or his investigative skills and work with:
• the mother;
• both maternal and paternal relatives; and
• other persons who may have identifying or locating information about an alleged father.
5233.5 Making a Diligent Search for Relatives
CPS March 2018
When a parent cannot be located despite a caseworker’s diligent efforts, the caseworker must make a diligent effort to locate a relative, such as a parent, grandparent, adult sibling, or adult child of the missing parent.
DFPS Rules, 40 TAC §700.1105
The caseworker follows the same process described in 5233.3 Making a Diligent Search for a Missing Parent.
5233.6 Serving a Citation When a Parent Lives in a Foreign Country
CPS March 2018
The caseworker must always consult with the regional attorney before attempting to serve a citation on a parent who lives in a foreign country. The legal requirements for serving a citation depend on the country involved.
Address Is Not Known
If the caseworker does not know a parent’s address in a foreign country, the caseworker must attempt to obtain the person’s last known address, telephone number, or email address.
A diligent search for a resident of a foreign country must include:
• interviewing available family members and friends; and
• contacting the foreign consulate, child welfare resources, or other government resources in that country.
Address Is Known
If the caseworker has an address for a parent, the procedure for serving a lawsuit depends on which country is involved. In Mexico (and some other countries), serving a lawsuit by international mail is no longer acceptable.
Options include:
• obtaining a waiver of service from the parent; or
• serving the parent through the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (The Hague Service Convention).
The caseworker must consult with the regional attorney or other attorney representing DFPS to determine which option to pursue.
Parent Cannot Be Located
If a parent living in a foreign country cannot be located, the caseworker must document in an affidavit the efforts made to find the parent. The affidavit can be used to support a request for an order permitting service by publication. The caseworker must consult with the regional attorney regarding the diligent search necessary for an order of publication.
5233.61 Due Diligence Search for a Person Believed to Be in Mexico
CPS March 2018
The steps taken to search for a person in Mexico are much the same as the steps taken to search in the U.S.; however, searching in Mexico is more difficult because DFPS does not have access to electronic databases that include Mexico, and if extended family members or friends are found, they may not speak English.
In all cases, however, the caseworker must be persistent, patient, and consistent in following up on leads.
Information Needed for Search
The caseworker must review the case file thoroughly and interview any person who might have information that will help search efforts.
When interviewing, the caseworker must:
• ask for two surnames for any parent from Mexico, since the tradition in Mexico is to use both the father’s and mother’s last names; for example, Martin Olivera Ramirez is the son of Jaime Olivera and Luisa Ramirez;
• ask for the date and place of birth and any last known address in Mexico for one or both parents OR ask for any relative known to be living in Mexico. There are 31 states in Mexico plus the Distrito Federal (like D.C., D.F. surrounds Mexico City). Knowing which city or village and state that a family came from is extremely helpful;
• ask where the parent was born, grew up, last worked, or lived in Mexico;
• ask for information on any adults living in the U.S. who might have information about a missing parent, including names, addresses, cell numbers or phone numbers, and email addresses of any adult children or other adult relatives, friends, former spouses, or past employers.
Contacts to Use to Search for a Person in Mexico
The Mexican Consulate
Before contacting the consulate, if the child is not a U.S. citizen, the caseworker must verify that the consul has already been given notice about the child under the Vienna Convention. See 6715 Working with the Foreign Consulate.
If notice has not been given, the caseworker must notify the consul before following up to find out about search assistance.
When ready to request assistance with a search, the caseworker must:
• contact the closest Mexican consulate;
• explain that a child protection case is pending; and
• request assistance in locating the missing parent who is believed to be living in Mexico.
U.S. Relatives
The caseworker must contact by phone or in writing any U.S. relatives for whom the caseworker has an address or telephone number and request information about the missing parent, including the missing parent’s address, email address, and telephone numbers.
Mexico Contacts
The caseworker must contact any possible relatives or other persons in Mexico by letter, email, or telephone.
For assistance with a Spanish speaker, the caseworker may contact the DFPS immigration specialist in the caseworker’s region.
To assist future communication when writing to someone in Mexico, the caseworker may provide the person with:
• a coupon for international return receipt (available at any post office);
• the caseworker’s email address; or
• both.
U.S. Residence
If a person who is the subject of a search lived in the U.S. previously, the caseworker must also run a diligent search in the state of last residence.
CPS Border Liaisons
The caseworker must:
• provide the CPS border liaisons with all of the information gathered; and
• ask the liaisons for any assistance they can provide.
For information on DFPS immigration specialists and border liaisons see the International and Immigration Issues Resource Guide.
5233.7 Additional Requirements When the Parent of a Native American Child Cannot Be Located
CPS March 2018
When a case involves a child subject to the Indian Child Welfare Act (see 5740 The Indian Child Welfare Act (ICWA)) and the parent’s identity or location is unknown, or the tribe is unknown, the caseworker must send a specific notice to the Bureau of Indian Affairs: Notice to Bureau of Indian Affairs: Parent, Custodian or Tribe of Child Cannot be Located or Determined, available in the Texas Practice Guide for CPS Attorneys, Section 13, under ICWA.
For assistance, the caseworker must contact:
• the DFPS regional attorney; or
• the Office of the General Counsel.
25 U.S. Code §1912(a) (Indian Child Welfare Act)
5233.8 Documenting the Search
CPS March 2018
The caseworker must document the efforts to locate missing parents and relatives in the child’s case record. The documentation must include:
• all correspondence related to the search;
• any report from FINDRS that may include information from the Parent Locator Service;
• any official results obtained by the DSHS Paternity Registry (see 5233.4 Additional Requirements When Locating an Alleged Father); and
• details on any other efforts related to the search.
The caseworker must provide the county or district attorney with a complete copy of the documentation, including the certificate provided by the Paternity Registry, if applicable, to file in the court record.
5234 Providing Notice of a Hearing
CPS March 2018
The caseworker must ensure that a person involved in a lawsuit receives advance notice of any hearing involving that person. A person may receive notice about a hearing when he or she is served with a citation for a lawsuit.
A notice about a hearing includes the date, time, and location of the specific hearing.
5235 General Notice Requirements for CPS Hearings
CPS March 2018
In general, all parties to a lawsuit must receive advance notice of a hearing, unless the hearing is ex parte (that is, attended by only one party, such as DFPS).
Generally, the legal representatives for the agency will have primary responsibility for providing notice of hearings. Caseworkers should confirm with a supervisor what specific duties are assigned to caseworkers, as individual offices have different protocols.
In addition, DFPS requires that children generally receive advance notice of every planned court action. See 5236 Notice Requirements Specific to Parents and Children.
DFPS Rules, 40 TAC §700.1102
For information on notice requirements specific to the various types of DFPS hearings, see 5534 Notice Requirements for all Hearings Prior to Final Order.
5236 Notice Requirements Specific to Parents and Children
5236.1 Notify Parents and Children About Planned Court Actions
CPS March 2018
When possible, the caseworker must inform parents and children about planned court actions 10 days before the action, unless an exception applies.
If DFPS has reason to believe that the parents might avoid a court action or impede an investigation, DFPS may, before giving notice of the planned court action:
• request a temporary restraining order to prohibit the parents from removing the child from the state before DFPS completes an investigation of child abuse or neglect (see 5150 Temporary Restraining Orders);
• take possession of the child pursuant to a court order appointing DFPS as temporary managing conservator; or
• take possession of the child before obtaining a court order, if there are exigent circumstances.
DFPS Rules, 40 TAC §700.1102
5236.2 Notify Parents of Their Rights to an Attorney and to Attend Hearings
CPS March 2018
The caseworker must make parents aware that they have:
• the right to ask to be represented by an attorney at every court hearing; and
• the right to attend every court hearing.
DFPS Rules, 40 TAC §700.1102
5237 Form of Notice
CPS March 2018
The caseworker or other person providing notice of a hearing may give the notice:
• in-person;
• by certified mail;
• by facsimile; or
• by another method directed by the court.
Texas Rules of Civil Procedure, Rule 21a
5240 Working With the Child’s Attorney Ad Litem, Guardian Ad Litem, and CASA
5241 Court Appoints Attorney Ad Litem and Guardian Ad Litem
CPS October 2019
Attorney Ad Litem or Guardian Ad Litem for a Child
When DFPS files a suit with the court to obtain custody of a child or to terminate parental rights, the court must appoint an attorney ad litem (AAL) and a guardian ad litem (GAL) to represent the child’s interests. In many jurisdictions, the court appoints a court appointed special advocate (CASA) to be the guardian ad litem, while in other jurisdictions the CASA is only appointed as a CASA. See 5242.2 Working With a CASA Who Is Not Appointed as a Guardian Ad Litem.
Texas Family Code §§107.011, 107.012, 107.0125
See the Court-Related Processes and Legal Appointments Resource Guide for more information on the Court Appointed Attorney Ad Litem and Guardian Ad Litem.
Attorney Ad Litem or Guardian or Guardian Ad Litem for an Adult with Disabilities
When DFPS files a suit with the court to obtain custody of a child or to terminate parental rights, the court may appoint an attorney ad litem (AAL) and a guardian ad litem (GAL) to represent the parent’s interests. In some instances, the AAL and GAL may be the same person.
In all cases that require court intervention and a parent has an intellectual or developmental disability or mental illness, DFPS staff must seek legal consultation and request that an attorney ad litem be appointed for the parent. The request must be documented in the case file.
5241.1 Roles of the Attorney Ad Litem and Guardian Ad Litem
CPS March 2018
A child’s attorney ad litem (AAL) and guardian ad litem (GAL) have very similar responsibilities and duties in a DFPS case, except that the attorney ad litem has the duty to advocate for what the child wants (with some limitations) while the guardian ad litem is not required to be an attorney and is charged with representing the child’s best interest.
Texas Family Code §§107.002, 107.003, and 107.004
5241.2 Cooperating With the Attorney Ad Litem and the Guardian Ad Litem
CPS March 2018
At times, the caseworker may disagree with the attorney ad litem’s or guardian ad litem’s position or recommendations on an issue. In such circumstances, the caseworker must be prepared to explain why his or her position or recommendation is more appropriate or would better meet the child’s needs.
The law requires the court to issue an order authorizing the child’s attorney ad litem or guardian ad litem to have immediate access to the child and any information relating to the child.
Texas Family Code §107.006
Once the caseworker confirms that the individual has a valid court order appointing the individual as the attorney ad litem, guardian ad litem, or both, the caseworker must cooperate with that individual at all times.
The caseworker must:
• consult with and share information with the attorney ad litem and guardian ad litem on a regular basis;
• keep the attorney ad litem and guardian ad litem informed about case developments and hearings;
• consult the attorney ad litem and guardian ad litem about placement;
• give notice and invite the attorney ad litem and guardian ad litem to meetings regarding the service plan;
• report progress or changes related to the child’s service plan;
• consider any concerns or objections that the attorney ad litem or guardian ad litem may have before making a recommendation for the child’s case plan; and
• respond to the attorney ad litem’s and guardian ad litem’s requests to meet with the child.
Texas Family Code §107.002; 107.003
5241.3 Providing Access to the Child
CPS March 2018
Both the attorney ad litem (AAL) and the guardian ad litem (GAL) are required to meet with and interview the following within a reasonable time after their appointment:
• The child (if the child is four years old or older)
• Any person with significant knowledge of the child’s history and condition, including any foster parent of the child
• The parties to the suit
The attorney ad litem and guardian ad litem are expected to conduct their own investigations as they deem necessary for them to:
• represent or make recommendations regarding the child;
• attend all legal proceedings in the case; and
• perform numerous other duties, either outlined in statute or directed by the court.
The caseworker must work with the guardian ad litem and attorney ad litem, placement resources, and others to help ensure that the attorney ad litem and guardian ad litem have proper access to the child.
If an attorney ad litem or guardian ad litem asks to meet with the child or caregiver, the caseworker must facilitate a meeting or telephone conference. If the parties agree, the caseworker may also facilitate age-appropriate contact and communication through other means, such as video conferences or letters, as applicable for the child’s age and interests.
If the caseworker determines it is appropriate to include external participants in a DFPS staffing, such as a family group conference or any other staffing the caseworker deems appropriate, the caseworker must allow the attorney ad litem and guardian ad litem to attend.
Texas Family Code §§107.002, 107.003, and 107.004
5241.4 Communicating With the Child’s Attorney Ad Litem and Guardian Ad Litem
CPS March 2018
The caseworker must keep the attorney ad litem, guardian ad litem, and the child’s CASA informed of events in the child’s case and provide notice of significant events involving the child, as required in 6151.3 Notification Requirements and Schedule.
The caseworker must follow regional practice and local communication plans to determine the appropriate method of providing notices that are not required by statute.
Placement Changes
Caseworkers must consult with the attorney ad litem, guardian ad litem, and CASA before making any placement change, except in an emergency.
An emergency is when:
• the change must be made within 24 hours or less; and
• the placement would no longer be available if DFPS waited to consult with the attorney ad litem, guardian ad litem, or CASA.
If a change is made on an emergency basis, the caseworker must notify the attorney ad litem and guardian ad litem as soon as possible, but no more than three days after the change.
Texas Family Code §264.107(e)(1)
See also 4142.2 Notify the AAL, GAL, and CASA of an Emergency Placement.
Notices and Documents
DFPS must share notice about hearings or court reports such as permanency progress reports and other documents 10 days (or more, when possible) before any hearing.
Texas Family Code §§263.0021(b)(5)-(8), 263.3025(a), 263.303, 263.501(c), 263.502(a) and 263.602(d)
5241.5 Providing Records to the Attorney Ad Litem and Guardian Ad Litem
CPS October 2024
The attorney ad litem (AAL) and guardian ad litem (GAL) are entitled to copies of most documents and records regarding the child. Any entity with records about the child, including records about social services, such as those provided by DFPS, must give the attorney ad litem and guardian ad litem access to the records.
There are very limited exceptions to this general rule, including:
• The exception for records on treatment for substance abuse (see 5241.51 Providing Drug or Alcohol Treatment Records); and
• Any limits that a court orders on the types of records that the attorney ad litem or guardian ad litem can access.
Generally, the caseworker must cooperate with the attorney ad litem and guardian ad litem and help them obtain or view records when requested.
The records remain confidential after being shared with the attorney ad litem and guardian ad litem.
Texas Family Code §107.006
5241.51 Providing Drug or Alcohol Treatment Records
CPS October 2024
DFPS may release a child’s drug or alcohol treatment records only:
• if the child has specifically consented to that disclosure by signing and authorizing the disclosure on the required consent; or
• under a court order specifically authorizing the release.
Texas Family Code §107.006(c); 42 C.F.R. Part 2
DFPS does not need the child’s consent to release information about the department’s own assessment of the child, including if the child is believed to have a substance abuse problem or a need for treatment.
Before disclosing a child’s drug or alcohol treatment records to the attorney ad litem or guardian ad litem, the caseworker must verify that the child has signed Form 2060 Consent for the Release of Confidential Alcohol or Drug Treatment Information and has specifically authorized the disclosure.
The caseworker must:
• provide the child with a copy of the consent form; and
• retain the original in the child’s case file.
Before receiving the substance abuse records, the attorney ad litem or guardian ad litem must sign Form 2061 Acknowledgement of Receipt of Confidential Information Regarding a Child.
5242 Working With a Court Appointed Special Advocate (CASA)
5242.1 Working With a CASA Who Is Appointed as a Guardian Ad Litem
CPS March 2018
In many jurisdictions, the court appoints a court appointed special advocate (CASA) to be the guardian ad litem.
When the court appoints the CASA as the guardian ad litem (GAL), all laws and policies that apply to the guardian ad litem apply to the CASA. See 5241 Court Appoints Attorney Ad Litem and Guardian Ad Litem.
5242.2 Working With a CASA Who Is Not Appointed as a Guardian Ad Litem
5242.21 Court Orders for CASAs Seeking Access to a Child or a Child’s Records
CPS March 2018
In some cases, a court appoints a CASA to a case, but does not appoint the CASA as the guardian ad litem. In those instances, another individual may have been appointed to fulfill the role of guardian ad litem, or the attorney ad litem may be filling a dual role as both required attorney ad litem (AAL) and guardian ad litem (GAL).
The caseworker must ensure that any individual requesting access to a child or the child’s records has a valid court order or a notification letter of volunteer assignment and acceptance that confirms the individual’s appointment as CASA or ad litem.
The order that is issued when the court appoints the CASA:
• may authorize the CASA to access any and all records relating to the child and the DFPS case (including records of family members, such as medical or mental health records of a biological parent); or
• may specify only the particular records that the CASA may view or copy, such as only those records filed in court.
If the CASA requests records that the court order does not appear to explicitly include, or the caseworker is not sure whether to allow the CASA access to a particular record, the caseworker must confer with the regional attorney, who may ask the CASA to request clarification from the court.
5242.22 Statewide Memorandum of Understanding and Local Agreements
CPS March 2018
In addition to following the directives of the court order regarding sharing information with a court appointed special advocate (CASA), the caseworker must follow the guidance provided by the memorandum of understanding (MOU) established between DFPS and CASA’s state office in Austin.
See the Court-Related Processes and Legal Appointments Resource Guide for more information on the Memorandum of Understanding.
The MOU establishes how DFPS and the CASA representatives communicate and share information and records. The MOU requires DFPS to notify a child’s CASA about any hearing or meeting regarding the child and the family’s case in the same manner as the attorney ad litem and guardian ad litem are notified. See 5241 Court Appoints Attorney Ad Litem and Guardian Ad Litem.
DFPS must also ensure the CASA has access to the child’s records as described in the MOU and its attachments, either through Case Connection or by other agreed upon method.
See the Court-Related Processes and Legal Appointments Resource Guide for the full text of the Memorandum of Understanding and its requirements.
See also 6939.4 Meeting to Discuss the Potential Adoptive Families.
5250 Documenting Legal Status and Legal Action
CPS March 2018
See the Hearings and Legal Proceedings Resource Guide for definitions of Legal Status and Legal Action.
5251 Entering a Change in Legal Status or Legal Action Into IMPACT
CPS December 2022
The caseworker, or their designee, must document in IMPACT any changes made to the legal status of a case or a legal action being taken on the same day that the order for the change is issued.
When that is not possible, the caseworker or designee must document the change as soon as possible but no later than three calendar days following the date the court orders the change. The caseworker is responsible for ensuring documentation in IMPACT accurately reflects any changes to the legal status or legal actions in a case.
The caseworker must not wait for a written court order to be issued, even when documenting changes to final court orders, such as:
- A court’s dismissal of a DFPS case.
- A court order for permanent managing conservatorship (PMC).
- Consummation of a court-ordered adoption.
If a caseworker is uncertain about what the judge ordered or when to enter the change (for example, if the judge orders that a change in a child’s placement take place on a specific date in the future), the caseworker must immediately consult with both of the following:
- The attorney representing DFPS.
- The program director in the appropriate DFPS region (if needed).