5400 From Removal to the Adversary Hearing
5410 Types of Court Orders and the Process for Obtaining a Court Order for Removing a Child
CPS November 2023
The caseworker must make reasonable efforts to prevent or eliminate the need to remove the child from the home, including offering a Family Team Meeting. The caseworker must not implement a safety plan, including a family-initiated parental child safety placement, or request an order to remove the alleged perpetrator from the child’s home, if the caseworker determines that a removal is necessary and more appropriate based on case-specific factors, including but not limited to the following:
- Danger to the child if the child remains with or returns to the parent.
- Child’s and family’s history.
- Risk to the child.
See 3220 Taking Legal Custody of a Child.
The caseworker removes the child from the home if the situation meets all the following:
- There is immediate danger to the child.
- The caseworker has made reasonable efforts, consistent with the circumstances of the case, to secure the child’s safety.
- There is no other reasonable way to ensure safety except for removal.
In compliance with the Fourth Amendment of the United States Constitution, DFPS must obtain a court order before removing a child, except in cases involving exigent circumstances. See 5412.11 Exigent Circumstances and Imminent Danger.
Texas Family Code 262 Subchapter B allows DFPS to obtain a court order authorizing a child to be removed from his or her parents or caregiver in the following situations:
- During an emergency removal, with a court order issued before the removal.
- During an emergency removal, with a court order issued after the removal.
The caseworker determines which circumstance applies.
See:
5411 Obtaining a Court Order before Conducting an Emergency Removal
5412 Conducting an Emergency Removal before Obtaining a Court Order
If the child is residing with a relative, the caseworker completes a preliminary home assessment on the relative at time of removal.
See 6622 Presenting a Preliminary Written Assessment.
5411 Obtaining a Court Order before Conducting an Emergency Removal
5411.1 Determining Whether to Conduct an Emergency Removal with a Court Order
CPS May 2023
The caseworker files for an ex parte emergency court order, before removing the child, when the situation meets both of the following criteria:
- The caseworker does not believe that the child is in imminent danger of being physically or sexually abused in the time it would take to obtain a court order, but the caseworker has reason to believe that if the child is not removed in the near future, the child will be in danger of harm or will be physically or sexually harmed during that time.
- The child is currently in a placement or family situation that is rapidly deteriorating, and the child may become unsafe at any time.
5411.2 Standard for Obtaining a Court Order before Conducting an Emergency Removal
CPS May 2023
Before conducting an ex parte emergency removal with a court order, the caseworker prepares and submits an affidavit.
The affidavit must contain sufficient evidence to satisfy a person of ordinary prudence and caution that the situation meets all the following criteria:
- There is an immediate danger to the child’s physical health or safety, or the child has been a victim of neglect, sexual abuse, or human trafficking.
- It is contrary to the child’s welfare to remain in the home of the parent or adult from whom the child is being removed.
- The caseworker has made reasonable efforts, consistent with the circumstances of the case, to secure the child’s safety and to prevent or eliminate the need for removal.
5411.3 Basic Process for Obtaining a Court Order before Conducting an Emergency Removal
CPS May 2023
Once the caseworker and supervisor have program director approval for an emergency order, the caseworker takes the following actions:
- Immediately requests the attorney representing DFPS to file a petition seeking relief and requesting an ex parte emergency hearing (that is, a hearing attended by only one party, which, in this case, is DFPS).
- The caseworker submits legal documents to the attorney representing DFPS within 24 hours after program director approval or on the first business day (if the 24-hour period includes a weekend or holiday).
- Follows 5421 Requirements for Completing a Removal Affidavit and prepares an affidavit with sufficient evidence to satisfy the standard explained in 5411.2 Standard for Obtaining a Court Order before Conducting an Emergency Removal.
- Participates as a witness, if needed, in the ex parte emergency hearing. See Texas Family Code §262.102.
- Removes the child if the court finds that the requirements for an emergency ex parte order are met and grants the order. (An ex parte order means that the court enters the order before holding a hearing where the parents are present and before the citation of the parents. An emergency order may not be valid if it is not in writing and signed, or if it was granted orally.)
If a DFPS lawsuit involves a child with possible Native American family history, the Indian Child Welfare Act (ICWA) may apply. See 5740 The Indian Child Welfare Act (ICWA).
Initial Tasks for an Emergency Removal
The removing caseworker does as follows:
- Takes possession of the child.
- Informs the child’s parents of the reasons for the removal.
- Gives the brochure While Your Child Is in Our Care to the parents. If the parents do not live together, the removing caseworker gives the brochure to each parent.
- Gives a completed Form 2231 Notice of Removal of Children to all parents at the time of removal, or no later than the first business day after removal. See Texas Family Code §262.109.
- Discusses with the child the child’s immediate needs and any special needs the child may have in the first 72 hours of placement, as well as any known sexual victimization or sexual aggression history. If the child is suspected to have a sexual behavior problem, sexual victimization, or sexual aggression, the caseworker must document the information in IMPACT.
- Gives Form 2625 Child Caregiver Resource to the parent or parents within 24 hours after removal and, to the extent possible, helps the parent or parents complete the form. If the parents do not live together, the removing caseworker gives the form to each parent.
- Gathers any available information needed to complete the forms for the placement authorization, medical consenter, and education decision-maker.
- At the time of placement or within 72 hours, the caregiver is provided the child’s Child Sexual History Report (Attachment A) that is generated in IMPACT and a Form 2279 Placement Summary. The caseworker enters the date the Child Sexual History Report (Attachment A) was signed on the child’s placement page in IMPACT. The caseworker uploads the signed Child Sexual History Report (Attachment A) into OneCase. For policy about providing this information to the caregiver at the time of placement, see 4133 Provide and Discuss the Placement Summary (Form 2279). For policy about identifying, documenting, or notifying a caregiver about sexual victimization or sexual aggression, see 6419 Working with Children Who Are Sexually Aggressive, Have Sexual Behavior Problems, or Are Victims of Sexual Abuse.
Discussion with Child
The caseworker has a developmentally appropriate conversation with the child about both of the following:
- Why the removal was necessary.
- Any adults, particularly those who live in the child’s community, who the child would be comfortable living with.
The caseworker also makes sure that the child understands both of the following:
- DFPS will, to the extent possible, assess the identified adults as potential caregivers for the child.
- There is no guarantee that the child will go live with these identified adults.
After the conversation with the child, the caseworker documents the conversation in IMPACT. The caseworker makes sure that the adults who the child identified are documented on Form 2625 Child Caregiver Resource.
The caseworker prepares for the adversary hearing, which takes place no more than 14 calendar days after DFPS removed the child, unless the court orders an extension. See 3221 Notification and Assignment of Conservatorship Caseworker. At the hearing, the child’s parents or caregivers have the opportunity to challenge DFPS’s evidence supporting the emergency removal. See 5430 Adversary Hearing.
5412 Conducting an Emergency Removal before Obtaining a Court Order (Exigent)
CPS November 2023
The caseworker removes the child before obtaining a court order only when there is reasonable cause to believe that the child is in immediate danger. There is an immediate danger to the child’s physical health or safety when the caseworker has reason to believe that any of the following is true:
- The child’s life or limb is in immediate jeopardy.
- Physical abuse is about to occur.
- Sexual abuse is about to occur.
5412.1 Standard for Conducting an Emergency Removal before Obtaining a Court Order (Exigent)
CPS November 2023
Only in limited circumstances may the caseworker remove a child first and then go to court to request a court order. This type of emergency removal is called an exigent removal. The caseworker must not remove a child without first obtaining a court order, unless the supervisor and program director have agreed and all of the following requirements are met:
- The caseworker has made reasonable efforts, consistent with the circumstances of the case, to secure the child’s safety.
- There is no other reasonable way to ensure child safety except for removal. The caseworker must not implement a safety plan, including a family-initiated parental child safety placement (PCSP), or request an order to remove the perpetrator or alleged perpetrator from the child’s home (see 5120 Removing the Alleged Perpetrator From the Home), if the caseworker determines that removal is necessary and more appropriate because the intervention would not adequately protect the child, based on case-specific factors. These factors may include but are not limited to the following:
- Danger to the child if the child remains with or returns to the parent.
- Child’s and family’s history.
- Risk to the child.
- Exigent circumstances exist requiring the immediate removal, and there is no time to obtain an emergency court order before removing the child.
- Based on the caseworker’s personal knowledge or information from another source that the caseworker has confirmed, the caseworker determines that the situation meets one or more of the following conditions (the caseworker also documents in the child’s case record what the caseworker personally knows about the child’s situation):
- There is an immediate danger to the child’s physical health or safety. The danger may present itself in any form, or come from any source, such as the child, another person, or the physical environment, or because the child’s household includes a person who has either sexually abused another child or abused or neglected another child in a manner that caused serious injury or death.
- The child is a victim of sexual abuse or human trafficking under Texas Penal Code 20A.02 or 20A.03 and is in imminent danger of further sexual abuse or trafficking.
- The parent or person with possession of the child is using a controlled substance, and the use is an immediate danger to the child’s physical health or safety.
- The parent or person with possession of the child is allowing the child to remain in a place where methamphetamine is manufactured.
- It is contrary to the child’s welfare to remain in the home of the parent or adult from whom the child is being removed.
5412.11 Exigent Circumstances and Imminent Danger
CPS November 2023
A caseworker only considers an exigent removal before obtaining a court order when the child is in imminent danger. When determining whether the danger is truly imminent and requires immediate action, the caseworker looks at various factors, including, but not limited to, those described in the following table.
| Factors to Consider |
Specific Considerations |
|---|---|
Is there time to obtain a court order? |
After the caseworker and supervisor have weighed everything they know about the immediate danger to the child, they consider whether the time it takes to obtain a court order would place the child in imminent danger. If the child would be placed in imminent danger, then it is appropriate to conduct an emergency removal before obtaining a court order. Consider All Circumstances The caseworker and supervisor must consider all of the circumstances in the case. The fact that the courthouse is closed does not automatically support a removal before obtaining a court order. The fact that the courthouse is open does not automatically require that a court order be obtained before the removal. |
What is the nature of the abuse or neglect? |
The caseworker and the supervisor must consider the severity, duration, and frequency of the abuse. Factors to consider include:
In the Case of Neglect When there are only allegations of neglect, the decision of whether to remove a child before obtaining a court order must be based on a determination of whether the child is in imminent danger of abuse or serious harm, based on the information discovered in the initial investigation, regardless of whether the imminent danger is from physical abuse, sexual abuse, or another type of abuse or neglect. This could include but is not limited to:
|
How strong is the evidence supporting the allegations? |
The caseworker and the supervisor consider whether the allegations are reliable in light of the strength of the evidence supporting them. Such considerations include:
Families with a History of DFPS Involvement A history of DFPS involvement with the family is not enough, in and of itself, to support a conclusion that the child is in immediate danger. The question is not whether DFPS has been involved, but whether DFPS’s involvement supports a conclusion that the child is in danger now. Cases Involving Assessments by the Forensic Assessment Center Network (FACN) An exigent removal of a child must not be based solely on the opinion of a medical professional under contract with DFPS who did not conduct a physical examination of the child. However, if both the physician who conducted the physical examination and the FACN physician agree that abuse or neglect occurred, then the use of both opinions may support an exigent removal. If the examining physician is an FACN physician, the forensic assessment must be conducted by a different FACN physician or another physician trained in diagnosing abuse and neglect. See 2233 Making a Referral to the Forensic Assessment Center Network. |
Is there a risk that the parent will flee with the child? |
The caseworker must consider whether there are objective indications that the parent will flee with the child, such as:
|
Is there a less extreme solution to the problem? |
DFPS must make reasonable efforts to prevent removal; that is, efforts that are consistent with the circumstances and provide for the child’s safety. See Texas Family Code §262.101. When removal is being considered, the caseworker must attempt to implement a solution to the family’s problems that is less extreme than an involuntary removal, as long as the child’s safety can be assured. Possible solutions may include:
|
What harm to the child could result from removal? |
When considering how a removal may affect the child, the safety of the child must always take priority. |
5412.2 Basic Process for Conducting an Emergency Removal before Obtaining a Court Order (Exigent)
CPS November 2023
The caseworker must receive approval from his or her supervisor and a program director before taking possession of the child.
The caseworker and supervisor, with program director approval, may also seek approval from an attorney representing DFPS before taking possession of the child.
The caseworker does all of the following:
- Informs the child’s parents of the reasons for the removal.
- Gives the While Your Child Is in Our Care handbook to the parents. If the parents do not live together, the removing caseworker gives the handbook to each parent.
- Gives a completed Form 2231 Notice of Removal of Children to all parents at the time of removal, or no later than the first business day after removal. See Texas Family Code §262.109.
- Has a discussion with the child about the following:
- The child’s immediate needs.
- Any special needs the child may have in the first 72 hours of placement.
- Any known sexual victimization or sexual aggression history. If the child is suspected to have a sexual behavior problem, sexual victimization, or sexual aggression, the caseworker must document the information in IMPACT.
- Gives Form 2625 Child Caregiver Resource to the parents within 24 hours after removal and, to the extent possible, helps the parents complete the form. If the parents do not live together, the removing caseworker gives the form to each parent.
- Gathers any available information needed to complete the forms for the placement authorization, medical consenter, and education decision-maker.
- Gives the child’s Child Sexual History Report (Attachment A) that is generated in IMPACT and Form 2279 Placement Summary to the caregiver at the time of placement or within 72 hours of placement. The caseworker enters the date the Child Sexual History Report (Attachment A) was signed on the child’s placement page in IMPACT. The caseworker uploads the signed Child Sexual History Report (Attachment A) into OneCase. For policy about providing this information to the caregiver at the time of placement, see 4133 Provide and Discuss the Placement Summary (Form 2279). For policy about identifying, documenting, or notifying a caregiver about sexual victimization or sexual aggression, see 6419 Working with Children Who Are Sexually Aggressive, Have Sexual Behavior Problems, or Are Victims of Sexual Abuse.
If a DFPS lawsuit involves a child with possible Native American family history, the Indian Child Welfare Act (ICWA) may apply. See 5740 The Indian Child Welfare Act (ICWA).
Discussion with Child
The caseworker has a developmentally appropriate conversation with the child about both of the following:
- Why the removal was necessary.
- Any adults, particularly those who live in the child’s community, who the child would be comfortable living with.
The caseworker also makes sure that the child understands both of the following:
- DFPS will, to the extent possible, assess the adults who the child identified as potential caregivers for the child.
- There is no guarantee that the child will go live with these identified adults.
After the conversation with the child, the caseworker documents it in IMPACT. The caseworker makes sure that the adults who the child identified are documented on Form 2625 Child Caregiver Resource.
Initial Tasks after Removing the Child
After completing the emergency removal and placing the child, the caseworker does all of the following:
- Immediately, or no later than the next business day, asks the attorney representing DFPS to file a petition seeking relief and requesting an ex parte emergency hearing (that is, a hearing attended by only one party, which, in this case, is DFPS). The caseworker makes the request immediately so that the court can hold the ex parte emergency hearing within the required time frame, as described in 5412.3 Required Time Frame for Ex Parte Emergency Hearing (Exigent). See Texas Family Code §262.105(a) and Texas Family Code §262.106.
- Follows 5421 Requirements for Completing a Removal Affidavit and prepares an affidavit with sufficient evidence to satisfy the standard explained in 5412.1 Standard for Conducting an Emergency Removal before Obtaining a Court Order. See Texas Family Code §262.105(b) and Texas Family Code §262.107(b). In the affidavit, the caseworker includes any critical information from the family’s history that would support a conclusion that the child’s household includes a person who has done either of the following:
- Abused or neglected the child or another child in a manner that caused serious injury or death.
- Previously sexually abused the child or another child.
- Participates as a witness, if needed, in the ex parte emergency hearing and is prepared to provide sufficient evidence to prove to the court that the situation meets all of the criteria in 5412.1 Standard for Conducting an Emergency Removal before Obtaining a Court Order (Exigent). See Texas Family Code §262.107.
- Prepares for the adversary hearing that takes place no more than 14 calendar days after DFPS removed the child, unless the court orders an extension. See 3221 Notification and Assignment of Conservatorship Caseworker. (At the adversary hearing, the child’s parents or caregivers can challenge DFPS’s evidence supporting the emergency removal. See 5430 Adversary Hearing.)
5412.3 Required Time Frame for Ex Parte Emergency Hearing (Exigent)
CPS November 2023
The ex parte emergency hearing takes place on or before the first business day after DFPS removed the child from the home. If the court is unavailable on the first business day, the hearing takes place on the next available business day but no later than the third business day after DFPS removed the child.
Texas Family Code §262.105(a)(3)
If Hearing Is Not Held Within the Required Time Frame
If the ex parte emergency hearing is not held within the required time frame (on or before the first business day after the child is removed or the first business day the court is available, but no later than the third business day after removal), DFPS does the following:
- Returns the child to the parent or other person from whom the child was removed.
- Provides whatever services it can in the home to protect the child from further harm.
Before Returning the Child
Before returning the child, the caseworker notifies the supervisor and program director and explains why the child will be returned.
If the Child Is in Danger
If the child is in danger of further harm in the home, the program director contacts the attorney representing DFPS, in writing, to discuss legal options.
This written notice must meet the following criteria:
- Clearly describe the danger to the child.
- Include a request for a new emergency removal, if needed.
- Be approved by the program administrator.
5413 Obtaining a Waiver of the Requirement to Provide Notice of Removal
CPS September 2021
At the ex parte emergency hearing, DFPS may ask the court to waive the requirement to provide notice of a removal to a person who is typically entitled to receive such notice (see Texas Family Code 262.109(d)). To do so, DFPS provides documentation to the court showing any of the following:
- DFPS could not locate the person.
- The case meets the criteria for a Baby Moses case under Subchapter D of Chapter 262, Texas Family Code (see also 2351 Baby Moses).
- There is other good cause for not providing notice.
5414 Rescinding the Decision for Emergency Removal
CPS September 2021
If, after obtaining program director approval, the caseworker and supervisor determine the emergency removal is unnecessary, the program director’s approval of the decision not to proceed is necessary (otherwise, the emergency removal proceeds).
The caseworker documents in IMPACT the decision not to pursue removal and the reasons why.
5420 Beginning a Child Protection Lawsuit
CPS March 2018
Regardless of which standard for removal applies, DFPS begins a suit affecting the parent-child relationship (SAPCR) by filing a petition.
The petition (sometimes called a pleading) tells the court, the parents, and any other party, that DFPS:
• is requesting the authority to care for a child temporarily; and
• may request termination of parental rights, if efforts to reunify the family are not successful.
The process of preparing to file a suit affecting the parent-child relationship requires close cooperation between the caseworker and the attorney representing DFPS.
The caseworker drafts an affidavit that provides the facts and evidence. The attorney representing DFPS uses the facts and evidence in the affidavit to show the court that DFPS is entitled to the specific court order that DFPS is requesting;
The attorney also generally:
• prepares the petition; and
• files the petition and affidavit with the court.
5421 Requirements for Completing a Removal Affidavit
CPS September 2023
DFPS must provide sufficient evidence in a removal affidavit to convince the court to grant a removal order.
DFPS must document in the affidavit all reasonable efforts, consistent with the circumstances and providing for the safety of the child, that were made to prevent or eliminate the need for the removal of the child.
Texas Family Code § 262.105(c)
Both of the following must happen in every case:
- DFPS informs the court as to whether there is an existing protective order involving a party or child and attaches a copy of the order to the petition.
- The caseworker notifies the closest active military base if a person alleged to have committed abuse or neglect is on active military duty or is the spouse of a person on active duty.
Texas Family Code §102.008(b)(11)
Unless the local court requires otherwise, the caseworker must use the Affidavit in Support of Removal. See the Sample Removal Affidavit and Instructions for the Removal Affidavit under the Affidavits heading in Section 13 of the Texas Practice Guide for Child Protective Services Attorneys.
If a child may be subject to the Indian Child Welfare Act (ICWA), the caseworker must use the Affidavit in Support of Emergency Removal of an Indian Child. See the ICWA Emergency Removal Affidavit under the Indian Child Welfare Act heading in Section 13 of the Texas Practice Guide for Child Protective Services Attorneys.
The affidavit must contain enough facts, based on personal knowledge, to demonstrate that removal is justified under the applicable standard.
The affidavit must also include all reasonable efforts made to prevent removal. The caseworker must provide the following information in the affidavit:
- Why an order for the removal of the alleged perpetrator or a protective order would not protect the child in the child’s home.
- Why a family-initiated parental child safety placement (PCSP) was not possible. The following reasons are acceptable:
- A PCSP was offered but refused.
- There was no time, consistent with the physical health or safety of the child and nature of the emergency, to conduct assessments on a PCSP caregiver.
- A PCSP would pose an immediate danger to the physical health or safety of the child.
Texas Family Code §262.101(a)(b)
If the affidavit does not contain enough information to justify removal, the caseworker may need to conduct further investigation or there may not be a legal basis for removal.
A court cannot rely on certain kinds of evidence in a finding for removal, including evidence that a parent has done any of the following:
- Home-schooled the child.
- Experienced economic disadvantages.
- Was charged with a nonviolent misdemeanor (other than one listed in Title 5 or 6 of the Penal Code or one that involves family violence).
- Provided or administered low-THC cannabis prescribed for the child.
- Declined immunizations for the child for reasons of conscience, including a religious belief.
- Sought an opinion from more than one medical provider on the child’s medical care, transferred the child’s medical care to a new medical provider, or transferred the child to another health care facility.
- Allowed the child to engage in independent activities that are appropriate and typical for the child’s level of maturity, physical condition, developmental abilities, or culture.
- Tested positive for marijuana, unless DFPS has evidence that the parent’s use of marijuana has caused significant impairment to the child’s physical or mental health or emotional development
The caseworker documents these categories of evidence if they are relevant to an investigation, but the caseworker cannot use them to justify a removal (or termination of parental rights). See 5563 Involuntary Termination of Parental Rights.
The affidavit must also be complete, concise, and organized. The caseworker must review the affidavit before providing it to the attorney representing DFPS and ensure it does not contain typographical or grammatical errors.
The affidavit must not include adoptive names of biological siblings or their adoptive parents. The caseworker must only use the biological sibling’s birth name to ensure confidentiality for the sibling and sibling’s adoptive family. See 1453.1 Sharing Information During the Course of an Investigation.
5422 Essential Information for the Petition
CPS March 2018
To prepare a petition, the attorney representing DFPS must have basic information about a case.
Local procedures and forms for conveying this information vary, but the caseworker must be prepared to provide:
• detailed information about the children, parents, and other members of the household;
• the reasons for removal;
• the efforts made to locate missing persons;
• the response of parents and extended family regarding any Native American family history; and
• any specific information requested by the attorney handling the case.
To provide accurate names and identifying information for the petition, the caseworker must ask the eligibility specialist to provide a screen print of the birth record that the specialist has obtained from the Bureau of Vital Statistics. See 1520 Obtaining Certified Birth Certificates and Screen-Printing Birth Records.
The caseworker must pay specific attention to gathering and sharing information related to the child’s Native American status and if there has been a custody lawsuit in the family’s past.
The caseworker must also gather and provide all of the information necessary to help process-servers locate individuals who are entitled to be served with the relevant citation. See 5230 Service of a Citation to determine who is entitled to be served with a citation for an original suit affecting the parent-child relationship.
5423 Limited Time Before Dismissal
CPS March 2018
A child protection suit is automatically dismissed without a court order one year after the court renders a temporary order appointing DFPS as temporary managing conservator, unless the court has begun trial or granted an extension. Extensions are extremely limited, permissible only if:
• the court finds extraordinary circumstances necessitate the child remaining in DFPS temporary managing conservatorship and this is in the best interest of the child;
• the court find extension is in the best interest of the child and either orders return of the child with DFPS to monitor, or orders a temporary order to the child to return home while the parent completes the service plan; or
• after a trial, a motion for new trial or mistrial is granted or an appellate case is remanded.
In each case, the court must set a new dismissal date.
Texas Family Code §263.401(b), (b-1); §263.403(b)
Because of the strict limit on any extension of time, caseworkers must be prepared for every hearing. Any delay in locating missing parents and relatives, determining paternity, asking about Native American family history or other essential issues can have a dramatic impact on child safety and permanency.
5430 Adversary Hearing
CPS March 2018
The purpose of the 14-day full adversary hearing is to:
• determine whether the child’s emergency removal was warranted;
• determine whether continued placement outside of the home is required; and
• obtain temporary orders for the protection of the child pending resolution of the suit, if continued placement is required.
As the party asking to restrict a parent’s rights to a child, DFPS has the burden to prove the necessity for the removal and for continued conservatorship of the child.
5431 Requirements for the Adversary Hearing
5431.1 Evidence Required on Request Prior to Adversary Hearing
CPS February 2023
The caseworker must provide the following documents, upon request, to the parent or child’s attorney at any time before the adversary hearing:
- A list of the names of anyone, other than DFPS staff, who will be called as a witness to any allegations in the petition.
- A copy of any offense report relating to the allegations, if the report is to be used to refresh a witness’s memory.
- A copy of any photo, video, or recording that is to be presented as evidence.
5431.11 Required Information Provided to the Court before the Adversary Hearing
CPS February 2023
The caseworker must file the following documents with the court before the adversary hearing:
- Form 2625 Child Caregiver Resource.
- Any completed home assessment on a child’s relatives or fictive kin, when applicable.
- Visitation schedule, if applicable.
If a child was placed with an identified relative or fictive kin before the full adversary hearing, the caseworker must provide the name of the relative or fictive kin to the court.
If the child was not placed with an identified relative or fictive kin before the full adversary hearing, the caseworker must document the reasons why and actions taken in the contact narrative, if any, to place the child with a relative or fictive kin.
In all information filed, Social Security numbers must be redacted.
Texas Family Code §262.114(a-1)
5431.2 Time Frame for the Adversary Hearing
CPS March 2018
A full adversary hearing must be held within 14 days of taking a child into possession or filing of lawsuit, unless:
• the child has already been returned to the home; or
• the court has extended the date of the adversary hearing.
Texas Family Code §262.201(a)
5431.3 Standard of Proof in an Adversary Hearing
CPS February 2023
In an adversary hearing, DFPS rebuts the presumption that placing the child with a parent or other person presently entitled to possession is in the child’s best interest.
Specifically, the caseworker must submit evidence sufficient to satisfy a person of ordinary prudence and caution that:
- There was a danger to the child’s physical health or safety, caused by an act or failure to act on the part of the parent or the person entitled to possession of the child, and that it is contrary to the child’s welfare to remain in the home.
- The urgent need for protection required immediate removal, and reasonable efforts consistent with the circumstances and with providing for the child’s safety were made to eliminate or prevent removal.
- Despite reasonable efforts to prevent or eliminate the need for removal, there is a substantial risk of continuing danger to the child if the child is returned to the home.
In determining if there is a continuing danger to the child’s physical health or safety, the court may consider if the household to which the child is to be returned includes a person who did one or both of the following:
- Abused or neglected another child in a manner that caused serious injury to or the death of the other child.
- Sexually abused another child.
Accordingly, the caseworker may submit sufficient evidence of the family’s history to support a conclusion of either serious abuse or neglect or prior sexual abuse by a person in the household, or may show continuing danger based on other evidence.
Unless there is a prior court order that limits a parent’s rights, or DFPS can demonstrate that placement with a non-custodial parent threatens the child’s safety, a non-custodial parent is entitled to custody of a child removed by DFPS.
Therefore, if DFPS determines that the child’s non-custodial parent did not cause the immediate danger to the child’s physical health or safety, or was not the perpetrator of the abuse or neglect, DFPS must do one of the following:
- Place the child with the child’s non-custodial parent.
- Submit evidence sufficient to satisfy a person of ordinary prudence and caution that the child does not belong with the non-custodial parent. The evidence must show one of the following:
- The non-custodial parent cannot be located, despite exercising due diligence, or is unable or unwilling to take the child.
- Placing the child with the non-custodial parent presents a continuing danger to the child’s physical health or safety caused by the non-custodial parent’s act or failure to act.
Texas Family Code §262.201(g-1)
If DFPS determines that placement with the child’s non-custodial parent is not safe, DFPS must place the child with the child’s relative, or prove that it is not in the child’s best interest to be placed with a relative.
The caseworker must submit evidence that shows whether placing the child with a relative is safe or not safe and is in the child’s best interest or not.
At every hearing (from removal to permanency hearings), the court reviews the placement of any child not placed with a relative or designated caregiver, and makes a finding as to whether DFPS has the option to place a child with such a person.
The caseworker must prepare in advance to have current and accurate information to present to the court as to why a child is not placed with a relative or designated caregiver.
5431.4 Requesting Services and Participation at the Adversary Hearing
CPS March 2018
Orders Regarding Parents
DFPS must work jointly with a child’s parents to develop a service and visitation plan.
For this reason, and because the adversary hearing is conducted early in the legal case, the caseworker must recommend only that the court order the services needed for the parents to address the safety threats that resulted in the child entering substitute care. The caseworker must not recommend services beyond that, as the caseworker needs time to develop a service plan jointly with the parents.
The caseworker must recommend services focusing on interventions that either:
• assess the parents’ protective capacities; or
• address diminished protective capacities that prevent the parents from safely parenting the child in the home.
If additional concerns arise:
• the caseworker must include services to address diminished protective capacities in the family’s service plan and in future court hearings; and
• DFPS must recommend the services be entered as an order of the court.
See 5520 The Family’s Service and Visitation Plans: Filing and Review Requirements.
Orders in General
If the court finds that the standard for naming DFPS as temporary managing conservator (TMC) is met at the adversary hearing, the court may issue appropriate orders, including orders regarding services to address the parents’ protective capacities, as described here.
The court may also issue other orders pertaining to the child and basic issues at the beginning of the case, such as the following:
• Child support to be paid to DFPS by the parents
(Although child support is not a safety driven issue, the law requires that child support always be requested. If a parent is truly indigent, the caseworker requests that the parent support the child in some way, such as by providing clothing.);
• Visitation by parents (see 5431.5 Temporary Visitation Schedule)
• Visitation by siblings
• Visitation by relatives or others who are important to the child
• Home assessments conducted on persons requesting that the child be placed with them
• Medical and psychological evaluations of the child, followed by the services indicated as appropriate by the evaluations
• Appointment of a medical consenter, if one has not already been appointed
• Restrictions on the type of placement required to meet a child’s individual needs
• Assessments of the parents, to aid in development of the family’s case plan
• Temporary injunctions against other parties; such as, prohibiting removal of the child from the jurisdiction, prohibiting unsupervised visits, and prohibiting discussions with the child regarding testimony in pending criminal action
• Appointment of representatives of the child (such as an attorney, a court-appointed special advocate, and a guardian ad litem)
• Payment of discovery and litigation expenses for the child’s representation
• Submission of the placement resource form (Form 2625 Child Caregiver Resource) to DFPS, if it has not been previously provided by the parents
For more information on preparing for and participating in the adversary hearing, and additional orders made at an adversary hearing, see the Hearings and Legal Proceedings Resource Guide under Preparing for and Participating in the Adversary Hearing: Tips and Information.
5431.5 Temporary Visitation Schedule
CPS February 2023
The caseworker must establish a temporary visitation schedule early in a case for each child whose goal is reunification. The caseworker must ensure that a parent, who is otherwise entitled to possession of the child, is able to visit the child no later than five days after DFPS is named the temporary, managing conservator, unless DFPS determines that the child’s visit with the parent would conflict with a court order relating to possession or access to the child, or the visitation is not in the child’s best interest, such as when:
- The court made or will make a finding of aggravated circumstances.
- The child was abandoned without identification.
When developing the temporary visitation schedule, the caseworker uses Form 2640 Temporary Visitation Schedule and must develop it in conjunction with the child’s parents and parents’ attorney to the extent possible.
The caseworker must prepare to present the temporary visitation schedule at each adversary hearing.
The temporary schedule remains in effect until the visitation plan is developed.
5431.6 Designation of an Education Decision Maker and Notification of a Surrogate Parent
CPS March 2018
Either at the adversary hearing or no later than five days following the adversary hearing, DFPS must provide the court with:
• the name and contact information for each person that DFPS designates to make educational decisions on behalf of the child; and
• the name of any person who has been assigned by a school or the court to serve as the child’s surrogate parent for purposes of making decisions regarding special education services, if applicable.
Texas Family Code, §263.004
The caseworker must file a completed Form 2085-E Education Decision-Maker at the adversary hearing with the required information.
The caseworker must file an updated form with the court any time:
• a new person is designated as the person who can make educational decisions;
• a new person is designated as the surrogate parent;
• a surrogate parent is appointed for the first time.
The caseworker must file the updated form no later than the fifth day after the person is designated or assigned.
Exceptions to the Requirement
The only exception to the requirement to designate an educational decision-maker is if the court order limits DFPS’s authority to make education decisions on behalf of the child, and therefore DFPS has no such authority to delegate.
If a caseworker thinks there may be an exception to the requirement, the caseworker must consult with the attorney representing DFPS immediately.
Texas Family Code, §263.004
Special Education Decision-Making
A foster parent is authorized to act as a “parent” for a foster child with a disability in making special education eligibility and service decisions immediately after the child is placed and is not required to be appointed as a “surrogate parent” by the school or the court to fulfill that role. The foster parent must receive training no later than 90 days after placement and must agree to other requirements.
Texas Family Code §263.0025 (a-1)
Texas Education Code §§29.015(a) and (b)
The caseworker must inform the appropriate school district if the child’s foster parent is unwilling or unable to serve as a parent for special education decision-making not later than the fifth day after the date a child with a disability in enrolled in school.
Texas Education Code §29.015 (d)
The school district must appoint an individual to serve as the surrogate parent for the child if the foster parent is unwilling or unable to serve as the parent for special education decision-making. The court may also appoint a surrogate parent if certain conditions are met.
Texas Education Code §29.0151 (b)(2)
Texas Family Code §263.0025(b)
If the court appoints a surrogate parent and the school district notifies DFPS that the surrogate is failing to properly perform the required duties, DFPS must promptly notify the court. The school must consult with DFPS and the school must appoint another person to serve as the surrogate parent for the child.
Texas Education Code §§29.0151(f) and (g)
5432 Requirements Following the Adversary Hearing
CPS March 2018
If the court issues an order naming DFPS as the temporary managing conservator of the child, the caseworker must request that the Vital Statistics Unit identify the court of continuing, exclusive jurisdiction.
Texas Family Code §§262.202 and 155.101
If the court that ordered removal orders transfer of the case from the court of continuing, exclusive jurisdiction, DFPS must file the transfer order with the clerk of the court of continuing, exclusive jurisdiction.
Texas Family Code §§155.201; 155.204(i)
If the court does not name DFPS as temporary managing conservator, and DFPS is dismissed, the caseworker and supervisor must decide whether to offer further services to the family.
The decision to offer further services must be based on:
• the court order; and
• DFPS’s assessment of the child’s safety.
However, the caseworker must keep in mind that, if the court dismisses DFPS’s petition, providing services is voluntary, unless the court later issues an order.
5440 Aggravated Circumstances
CPS April 2022
If a parent has committed specific types of serious child abuse, the court may make a finding that a parent has subjected a child to aggravated circumstances.
If the court makes such a finding, the court may do the following:
- Waive the requirement to develop a service plan.
- Waive the requirement to make reasonable efforts to return the child.
- Accelerate the trial schedule to result in a final order at an earlier date than otherwise required under the mandatory dismissal deadline.
If the court makes such a finding with respect to at least one parent, the initial permanency hearing must still be held no more than 30 days after the adversary hearing.
Examples of aggravated circumstances include a parent who has done any of the following:
- Inflicted (or permitted someone else to inflict) serious bodily injury on their child.
- Sexually abused their child.
- Promoted pornography or trafficking involving their child.
- Was convicted of murder, manslaughter, or felony assault of their child.
For a complete list of aggravated circumstances, see Aggravated Circumstances in the Hearings and Legal Proceedings Resource Guide.