Child Protective Services: Conservatorship Phase

Conservatorship is the legal term for custody. To obtain a conservatorship order, a person or DFPS must file a Suit Affecting the Parent-Child Relationship (SAPCR). If DFPS asks for a legal removal of a child, that means they will be asking a court to name DFPS the Temporary Managing Conservator of a child. Generally, a managing conservator has the right to decide where and with whom a child will live.

Before DFPS asks a court to be named the Temporary Managing Conservator of a child, the DFPS caseworker and supervisor should discuss the legal necessity of removing the child with an attorney who represents DFPS. If DFPS seeks a formal legal removal from a parent and a parent cannot afford to hire an attorney, the parent may be entitled to court-appointed legal representation. Read The Parent Attorney: Your Right to Legal Representation in CPS Cases and The Right to a Lawyer in Family Law Cases.

Temporary Managing Conservatorship in the context of the CPS process means that DFPS will temporarily take custody of your child. DFPS may request the right, to make both educational and medical decisions for your child. DFPS will also ask that as a requirement of the child being returned to your custody, you be court ordered to complete a plan of service. 

When DFPS requests to be named Temporary Managing Conservator of a child, they must also file a petition. A petition is a legal document that begins the Suit Affecting the Parent-Child Relationship. The petition may include language asking that a parent’s rights to their child be terminated. However, this does not mean a parent’s rights to their child will automatically be terminated. If a parent does not complete their services and other requirements in the court orders, CPS may ask a court to terminate a parent’s legal rights to their child at a final hearing or trial. 

At or before the 14-Day Adversary Hearing is held, the court will appoint a guardian or attorney ad litem or both to represent the child. The Attorney Ad Litem and Guardian Ad Litem may be the same person or can be separate individuals. An Attorney Ad Litem shall represent the child’s express objectives, or what the child says they want. A Guardian Ad Litem shall represent what they believe to be the best interests of the child. 

If CASA, which stands for Court Appointed Special Advocates, is available in your area the judge may assign CASA as the guardian ad litem of your child. If CASA is not available the judge may also appoint a competent adult with relevant knowledge, skills, and training as the guardian ad litem. The appointment of CASA or an independent guardian ad litem is authorized by law in Texas.

The role of CASA or an independent guardian ad litem is to make reports to the judge regarding the health, safety, welfare, and most importantly, what they believe to be the best interest of the child. The guardian ad litem is entitled to review any and all pleadings, attend hearings, and review otherwise protected information regarding your child such as medical or educational records. In addition, the guardian ad litem may meet with the child without a parent’s consent. It is not required that CASA or the independent guardian ad litem be licensed to practice law.

The attorney ad litem may be appointed to represent the child in legal proceedings and ensure that the child’s rights are protected or in a dual capacity as both guardian and attorney ad litem. In a dual role the attorney ad litem represents both the best interest of the child and the child’s expressed objectives to the court. Unlike the appointment of a separate guardian ad litem, the dual role of attorney ad litem and guardian ad litem can only be fulfilled by a licensed attorney. 

DFPS is required to place a child with a relative or friend of the family, if a child can be placed safely with that person. If a parent has a friend or family member that is willing to act as placement for the child, the parent can tell the court at the initial hearing. To be approved as a placement, DFPS generally requires that a family member have no criminal or DFPS history and have an approved home study. If a parent provides an alternative placement option at a hearing, the judge may order DFPS to conduct a home study in order to determine if the friend or family member a parent suggests is an appropriate option for placement.

A parent may suggest friend or family placements at any time after the initial hearing as well. If a parent would like to suggest a friend or family placement, it can be helpful to notify DFPS and the court of any proposed placements as early into the case as possible. 

1. Temporary child support;
2. Temporary visitation schedule with the child for parents, siblings, or both;
3. Whether or not family or friends with pre-existing relationships with the child should be formally evaluated for placement; and
4. Medical and psychological evaluations for the child. 

Within 60 days from the date of removal there will be another hearing that parents are required to attend. The only exception to this requirement is if the court makes a finding of aggravated circumstances.

The Initial Permanency Hearing will take place not more than six months or 180 days after the initial removal of your child. At this hearing the judge will review the parent’s progress in completing their plan of service. The judge will also consider the welfare of the child and the wishes of the child at this hearing. Because DFPS has a continuing duty to try and place the child with family or friends rather than in foster care, the judge must make a finding if the child is placed with a relative or other designated caregiver.

At the Initial Permanency Hearing, the judge will also want to know whether or not the parents have started on their plans of service and complied with the orders of the court. If a parent has completed any services the parent should bring the documentation with them to court or, if applicable, provide it to their attorney prior to the permanency hearing. Community based services may be added or removed from the plan of service at this hearing. If there has been significant progress in the case and it is appropriate the judge may order the child to return home at this time. A child may also be returned home to a parent prior to the initial permanency hearing if approved by the court. 

Texas law requires the court hold a Permanency Review Hearing or Review Hearing at least every 120 days or four months after the Initial Permanency Review Hearing. However, Review Hearings may be held more often than every 4 months if requested by one of the parties or on the court’s own motion. At each Review Hearing the judge will evaluate the progress of all parties, and whether or not it is appropriate to return the child to a parent’s home. The DFPS caseworker will submit a written report on the progress of the case to the court prior to each Review Hearing. A parent and their attorney will be entitled to obtain copies of the report filed with the court prior to the hearing. 

If you are a nonparent, friend, or family member that is interested in becoming a placement for the child who is currently in foster care, you may want to attend the Review Hearings and identify yourself to the attorney ad litem and guardian ad litem and the judge. You may also want to seek legal advice about how to intervene (become involved), in the underlying Suit Affecting the Parent-Child Relationship. You must meet certain legal requirements and request leave of court to intervene in this type of lawsuit.

Adapted from the Texas Young Lawyers Association CPS Handbook.

Every hearing that is conducted through a DFPS case should result in a written order. The orders that are made during any hearing in a DFPS case are very important. If a parent does not follow orders made by the court during a DFPS case, the parent’s rights to their child may be terminated. A parent should always request a copy of any order made during a DFPS case. If a parent does not understand or cannot follow a court order, the parent should discuss these issues with their attorney. Caregivers should also discuss the orders made regarding the child and any visitation orders with the caseworker and the attorney ad litem and guardian ad litem for the child, so the caregiver understands what is required for the child. Failure to follow orders regarding visitation or requirements for the child could result in the child being placed in another home.

From time to time, throughout the DFPS process, meetings known as a permanency planning meetings, or PPM, will be held. At each meeting, a parent will have the chance to discuss the case’s progress outside of the judge’s presence. The group will also discuss barriers to completing a parent’s plan of service and develop strategies to help a parent complete their service plan and achieve permanency for the child. These meetings are usually held semi-regularly and tend to occur just before or after the permanency review hearings. 

This article, Child Protective Services: Conservatorship Phase, is the fifth of seven originally prepared by Legal Aid of Northwest Texas. The other articles are:

1. Child Protective Services: Reporting Abuse or Neglect
2. Child Protective Services: Investigation Phase
3. Child Protective Services: Family-Based Safety Services Phase
4. Child Protective Services: The Removal Process 
5. Child Protective Services:  Final Hearing, Dismissal, Extension or Monitored Return
6. Child Protective Services: Termination of Parental Rights