Child Protective Services learns of potential incidents involving abuse or neglect of a child from reports made via telephone. These reports are anonymous and intended to bring important information to the agency's attention as quickly as possible.
Suppose the child who is the subject of one of these reports cannot be located. In that case, the Department of Family and Protective Services (who oversees Child Protective Services investigations) should notify the Department of Public Safety that the location of the child and their family is unknown at that time. This will trigger an investigation by the Department of Public Safety as to the child's whereabouts and family.
When a Safety Check Alert List becomes a part of a Child Protective Services case
If Child Protective Services cannot locate a child, then the child and the child's family will be placed on a child safety check alert list. This list is maintained by law enforcement and would include any information that the agency has regarding that child. Their name, sex, age, social security number (if known), and any descriptions of the child and their family that may be helpful to identify them.
Law enforcement statewide will then be notified of this update and can keep an eye out for the child or the family using the clues listed on the safety check alert list. Child Protective Services will be alerted when the child and their family are located by law enforcement. A police officer can take temporary possession of the child at that time to ensure their safety.
What emphasis is placed on the best interests of your child in a Child Protective Services investigation?
In any legal proceedings related to a child in Texas, the best interests of that child are the primary consideration given to it by a judge. How a judge will make decisions regarding what is in your child's best interests is a critical topic and something that we need to talk about today.
The Texas Family Code goes over a handful of the factors that a judge can and should utilize when determining what is in the best interests of a child. The age of the child is essential, and the child's history is associated with family violence. Substance abuse usage in the family is also an important consideration that is made.
It may be necessary for a hearing to be held that goes into what is in your child's best interests. It is presumed that it is in the best interests of your child to be placed with their other parent or a family member unless it is shown to not be in their best interests in a hearing before the court.
This type of hearing is often held immediately before final orders are issued in a case. These are called permanency hearings and will go towards providing the judge information about the best living arrangements for your child permanently when the family case is over.
The judge must decide before a final order is issued as to whether or not returning the child to their home is a safe decision to make and whether doing so is in the child's best interests.
In determining what is in the best interests of a child, the Department of Family and Protective Services should consider whether the child's placement in any living setting is in that child's best interests. That living arrangement should be as close as possible to the child's home and should also be able to meet the child's needs, whatever they may be.
An overview of when removal of your child from your home is justified in a Child Protective Services case
There are a limited amount of circumstances in which Child Protective Services can seek a court order that allows them to be substituted as a managing conservator of a child. This would enable the agency to remove your child from your home. The basis for doing so is the natural and unacceptable risk of harm to your child.
What steps were taken to prevent the need for the removal of your child from occurring?
The government views the removal of your child from your home as a last resort. When a court decides whether or not the removal of that child from your home is justified under the circumstances, it will look to see whether or not your child's health and safety are genuinely compromised. Your financial status and past convictions related to nonviolent misdemeanors will not be factors considered by a judge.
Where will the court case be held?
This is an important question. When the Department of Family and Protective Service brings a lawsuit in which it is seeking to remove your child from your home, it will be filed in the county where your child is found. That court is said to have jurisdiction over the case.
Wherever your child is determined to reside is where the venue is appropriate. For the most part, this is where the child's parent lives. Exceptions to this general rule are where another court has already exerted continuing jurisdiction over the case (based on prior legal issues).
Removing your child based on an emergency order issued by a court
An original lawsuit filed by the Department of Family and Protective Services that requests permission from a judge to take possession of your child would need to include an affidavit of a person with personal knowledge that states facts sufficient to show an immediate danger to your child's physical health or safety. Additionally, it will need to be shown that there is no time to schedule a full-fledged hearing, and those reasonable efforts were made to prevent the need to remove the child from your home.
Determining the immediacy of the danger posed to your child is probably the most crucial consideration your judge will make. Primarily, a judge will look to whether there is a person in your child's household that has engaged in abuse or neglect of another child on a prior basis or has sexually abused another child.
An investigation will be held, and if the Department of Family and Protective Services determines that child abuse has occurred and that the child is best served by removing the alleged perpetrator of that abuse, a petition will be filed with a court that seeks that kind of result. This is as opposed to having to remove the child from home.
A protective order may also be sought rather than removing anyone from home. If that is appropriate, the Department of Family and Protective Services may apply to a protective order on behalf of your child rather than seek the removal of the child or the alleged perpetrator.
When can your child be removed from your home with no court order in Texas?
In some situations, the Department of Family and Protective Services will argue that there is no time to obtain a court order before removing your child from your home. These situations are limited to circumstances that involve immediate, physical danger to your child's physical health or safety. Other cases involve the commission of abuse that relates to sex or sex trafficking. The person who reports incidents such as these must have personal knowledge that other people have corroborated about these incidents.
Once Child Protective Services has removed your child and is now in their possession, a court order will need to be obtained that allows them to maintain your child in their facilities or with a foster family. An initial hearing will need to be held within twenty-four business hours of being in Child Protective Services possession. The protection of your child's physical health and safety is of the utmost importance.
At the time of this initial hearing, the court must order the return of your child to your home unless it becomes satisfied that there is sufficient evidence that shows that there is either:
-a continuing danger to the physical health or safety of your child if the child were to be returned to live with you in your home
-your child has been the victim of sexual abuse or trafficking on one or more occasions, and that there is a substantial risk that the child will be the victim of sexual abuse or trafficking in the future
-that you, your spouse, or significant other are using a controlled substance and that the use of this controlled substance presents an immediate danger to the physical health or safety of that child
I think the most significant decision that the judge will need to make is whether there is a continuing danger to your child's physical health or safety if they are to be returned to your home. From what I have seen in courtrooms that I have been in, past incidents of abuse or neglect by the person accused have caused harm or injury to another child. Past incidents of sexual abuse are negatives as far as being able to have your child return to your home. Therefore, it would make sense to me that if you are living with anyone who has a history like this, it is a good idea to see if that person can leave your home.
The role of attorney ad litem and guardian ad items in Texas Child Protective Services cases
Suppose Child Protective Services were to file a lawsuit in which they request to terminate the parent-child relationship between yourself and your child. In that case, the court will need to appoint an independent attorney called an attorney ad litem. This attorney will represent the legal interests of your child. Also, a guardian ad litem will be appointed as well. The Guardian is there to represent the best interests of your child.
What happens in situations where a lawsuit is filed before removing your child?
It is not always necessary to remove your child from your home and then file a lawsuit. The Department of Family and Protective Services can file an original lawsuit that requests to take possession of your child after notice to you and a full hearing.
The petition to take possession must contain an affidavit that states with sufficient specificity that there is a continuing danger to the physical health or safety of the child that is caused by an act or failure to act of the person entitled to possession of the child and that allowing the child to remain in the home would be contrary to the child's welfare.
As we saw in previous sections of this blog post, there needs to be evidence showing that any non-removal methods to eliminate this risk of harm were undertaken.
More on Child Protective Services cases will be posted on our blog tomorrow.
As far as family law cases are concerned, few are more nerve-wracking than Child Protective Services cases. These cases usually contain complex subject matter and present the most significant risk of harm to you and your child. For that reason, if this subject matter is interesting to you, I recommend that you come back to our blog tomorrow to read more.
In the meantime, if you have any questions about the material that we covered today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys work around the clock to help further the interests of our clients in courtrooms across southeast Texas. A consultation is free of charge and allows you to speak with one of our attorneys about your particular circumstances and receive direct feedback about them. Thank you for your time and consideration.