Texas law requires anyone who suspects that a child or other vulnerable individual is being abused or neglected must report such incidents. Texas Family Code Section 261.101(a) states “A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report…” Abuse or neglect can be reported at (800) 252-5400 or online at TxAbuseHotline.org. Not all calls to the hotline result in DFPS opening an investigation. If a call to the DFPS hotline leads to an investigation being opened, the following information is helpful.
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As a part of the investigation, the caseworker will likely ask to interview the children. If and when the caseworker visits with the children, they may visit them at school or outside of the parent’s presence. A parent may refuse to allow the caseworker to interview your child outside of your presence. However, if you do not give the caseworker permission to interview your child, the Department may ask a judge for a court order allowing them to do so. When the interview takes place it will likely be recorded in either video or audio format.
The investigator will make contact with the parents of the alleged victim. Participation in the interview is voluntary. Should a parent choose to participate, a parent is not entitled to court appointed legal representation. The investigator will record the interview which may be used during later stages of the DFPS process including formal removal of the child, during a law enforcement investigation, and in private custody proceedings. If a parent or conservator faces potential criminal charges, the parent or conservator should consult an attorney to discuss how an interview could affect a criminal case.
- 1. REASON TO BELIEVE
- 2. UNABLE TO DETERMINE
- 3. RULED OUT
- 4. UNABLE TO COMPLETE
- Unable to Complete is assigned as the outcome if the Caseworker was unable to complete the investigation.
A plan of service is a voluntary agreement between a parent or caregiver, and DFPS. According to the DFPS handbook, a written plan of service should be developed within 21 days after the FBSS case has been opened. The plan of service should detail, among other things, why DFPS is involved, what tasks must be completed, how the requested action will help alleviate concerns of abuse or neglect, how to complete the requested actions, and how your progress will be evaluated. Once completed, the caseworker will ask the parent or caregiver to sign the agreement and provide you with a copy of the plan. A parent may refuse to sign the plan of service; however, this may result in the child being removed by DFPS. Texas law requires that the plan be reviewed when significant changes occur and at least every six months. However, DFPS regulations require the assigned caseworker and supervisor review the plan of service at least one time every month.
1. Removal without a court order:
DFPS can remove a child without a court order in some emergency circumstances. If DFPS removes a child from a parent or legal guardian without a court order, DFPS must file a SAPCR, request that the court appoint an attorney ad litem for the child, and request an initial hearing no later than the next business day after the emergency removal. DFPS may have the hearing without the parents present, which is called an ex parte hearing.
2. Removal with a court order:
DFPS can request that a court sign an order to remove a child from the parents in an ex parte hearing without the parents present. If DFPS obtains an order authorizing the emergency removal of a child, DFPS may remove the child from the parents after obtaining the order.
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 or 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. 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.
You can talk to and hire a lawyer at any time, including during the investigation stage, if you can afford one. But you are not entitled to a court appointed lawyer during a CPS investigation. What this means is that you can have a lawyer helping you if you pay for the lawyer yourself, but the court does not have to give you a free lawyer until later in the CPS process, and only then if you are determined to be indigent.
Paying for a lawyer is hard for many people – lawyers can be very expensive. Organizations that offer free legal advice may be able to help, but there are not many legal aid lawyers who work on CPS cases. You can also try to find a lawyer willing to give you limited advice for a lower fee – maybe you can call and talk to the lawyer for advice, even if the lawyer does not come to CPS meetings with you. Reading this Handbook is another way you can help yourself even if you are not able to pay for a lawyer yourself.
You must meet all 3 requirements for a court to appoint you a free lawyer:
- Indigency. You must be “indigent” – this means that you have a low income and cannot afford to pay for a lawyer yourself.
- Lawsuit. CPS must have filed a lawsuit in court asking to be appointed the temporary managing conservator of your child or for your parental rights to be terminated.
- Oppose the Petition. You must “respond in opposition” to the suit – this means you must go to court and show that you are going to fight the CPS petition.
Texas law is not specific about how much income you have to have to be considered indigent. Most courts give you a form to fill out where you will write down how much money you make each month and what your monthly expenses are like rent, utilities, daycare, and gas. You should fill out the form if you think there is any chance you might be able to have a free lawyer. One easy test, for example, is whether you get any other government benefits, like SNAP/food assistance. There is no penalty for filling out the form even if you do not end up receiving a court-appointed lawyer.
For parents who are under 18 years old, you are also entitled to a lawyer. You should make sure to ASK the court for a lawyer if one is not immediately appointed to your case. Your ability to pay for a lawyer will be based on your income, not that of your parents. For more information relevant to teenage parents, See page 110.
CPS is an acronym for Child Protective Services. In Texas, Child Protective Services is a branch of the Department of Family and Protective Services or DFPS. DFPS is sometimes called the Department. DFPS is a state agency that oversees five different programs including Adult Protective Services, Child Protective Services, Child Care Licensing, Statewide Intake, and Prevention and Early Intervention throughout the state of Texas. DFPS is tasked with investigating reports of abuse or neglect of children, providing services to children and families, assisting children in foster care transition to adulthood, and finding suitable adoption placements for children in foster care. This toolkit is intended to be a guide and provide insight as to how DFPS works and how you can successfully work with DFPS. Any specific questions or concerns regarding your involvement with the Department of Family and Protective Services and/or Child Protective Services should be discussed with an attorney licensed to practice law in the State of Texas. If you have further questions, you can call the Family Helpline at 844-888-6565 for free legal information and education regarding DFPS issues.
If you have been served with a citation and petition, there is a deadline to file your answer.
To determine the deadline, find the day you were served on a calendar. Count out 20 more days (including weekends and holidays) then go to the next Monday. You must file your answer with the court on or before this date at 10:00 a.m. If the 20th day falls on a Monday, go to the next Monday. If the courts are closed on the day your answer is due, then your answer is due the next day the courts are open.
If you are served and do not file an answer on or before the deadline, the petitioner can finish the case without any further notice to you. This is called a “default judgment.”
If you have NOT been served with a citation and petition, there is no deadline to file your answer. You can file your answer at any time after the petitioner files a petition (the form that starts the lawsuit) with the court. If you file your answer, the petitioner will not need to have you served.
NOTE: The deadline to file an answer may be different if you have a civil case (such as an eviction or other type of case filed in Justice of the Peace court)