Child Protective Services learns of potential incidents involving abuse or neglect of a child from reports that are made via telephone. These reports are anonymous and intended to bring important information to the attention of the agency as quickly as possible.
If the child who is the subject of one of these reports cannot be located, then 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 whereabouts of the child and their 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 him or her.
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 as soon as the child and/or their family is located by law enforcement. A police officer can take temporary possession of the child at that time in order 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 the best interests of your child is a very important 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 important as well as the child's history 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 the best interests of your child. 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 what is the best living arrangements for your child on a permanent basis when the family case is over with.
A decision must be made by the judge 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 best interests of the child.
In determining what is in the best interests of a child, the Department of Family and Protective Services should consider whether the placement of the child 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 needs of the child, 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 allow the agency to remove your child from your home. The basis for doing so is the real 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 makes a decision as to 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 truly compromised. Your financial status and past convictions related to nonviolent misdemeanors will not be factors that are 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 cases).
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 request 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 for the removal of the child from your home.
Determining the immediacy of the danger posed to your child is probably the most important consideration that 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 the home.
A protective order may also be sought rather than removing anyone from the home. If that is appropriate, the Department of Family and Protective Services may file an application for 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 prior to removing your child from your home. These situations are limited to circumstances that involve immediate, physical danger to the physical health or safety of your child. Other circumstances 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 has been corroborated by other people 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 their 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 of 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 in regard to whether there is a continuing danger to the physical health or safety of your child if he or she is 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. It would make sense to me, therefore, 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 litems in Texas Child Protective Services cases
If Child Protective Services were to file a lawsuit in which they request to terminate the parent-child relationship between yourself and your child, then 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 prior to removing your child?
It is not always necessary to remove your child from your home and then to file a lawsuit. An original lawsuit can be filed by the Department of Family and Protective Services 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 and all non-removal methods to eliminate this risk of harm were undertaken.
More on Child Protective Services cases will be posted in 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 difficult subject matter and present the greatest risk of harm to you and your child. For that reason, if this subject matter is at all 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 an opportunity to speak with one of our attorneys about your particular circumstances and to receive direct feedback about them. Thank you for your time and consideration.