Texas Child Protection Law Bench Book
2023 version: As effective November 1, 2023
Burden of Proof
A. Probable Cause
Probable cause is most often used in criminal cases and applies in the Family Code when DFPS is seeking orders in aid of an investigation. Courts have not defined probable cause in relation orders in aid of an investigation but in the criminal context probable case is defined both in relation to a warrantless seizure of evidence and in the application for a warrant to search for evidence.
For a warrantless search, Texas courts have defined probable cause as “when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found.” Igboji v. State, 607 S.W.3d 157, 613.
In the context of an application for a search warrant, Texas courts have defined probable cause as “if the facts contained within the four corners of the affidavit, and the reasonable inferences drawn therefrom, justify the magistrate's conclusion that the object of the search is probably on the premises at the time of the issuance.” Castillo v. State, 1998 Tex. App. LEXIS 5082, *2.
This burden of proof applies to:
• Hearing for an order in aid of investigation admission by DFPS to the home, school, or other place where the child may be for an interview, examination, and investigation, or an order to release records by the parent, or to order a medical, psychological, or psychiatric examination of the child. The court must find probable cause that the request is necessary to protect a child from abuse or neglect. Tex. Fam. Code § 261.303(b)(2) and (c).
B. Good Cause
Good cause is defined in Black's Law Dictionary as a "legally sufficient reason." The definition also states that "good cause is often the burden placed upon a litigant . . . to show why a request should be granted or an action excused.
This burden of proof applies to:
• Hearing for an order in aid of investigation admission by DFPS to the home, school, or other place where the child may be for an interview, examination, and investigation where the court must find good cause to believe that the child is in imminent danger of aggravated circumstances under Tex. Fam. Code § 262.2015. Tex. Fam. Code § 261.303(b)(1).
• Hearing requesting access to medical records for a parent or caregiver with a history of medical or mental illness. For good cause shown, the court shall order the examination or allow DFPS to have access to the records under terms and conditions prescribed by the court. Tex. Fam. Code § 261.305(b).
C. Sufficient Evidence to Satisfy a Person of Ordinary Prudence and Caution
The standard “ordinary prudence and caution” requires a minimal showing of evidence, less than a preponderance but enough to persuade a reasonable person, similar to the “probable cause” required for a search warrant. This burden of proof applies to:
• Hearing on a request for court ordered participation. Tex. Fam. Code § 264.203.
• Ex Parte Removal Hearing. Tex. Fam. Code § 262.101;
• Taking Possession of a Child in Emergency Without a Court Order. Tex. Fam. Code § 262.104; and
• Full Adversary Hearing. Tex. Fam. Code § 262.201.
D. Preponderance of the Evidence
To show a “preponderance of evidence” is to have evidence that is of greater weight or is more convincing than the evidence that is offered in opposition to it. A metaphor to illustrate the concept of preponderance is the scales of justice rising slightly higher on one side; that is enough to meet the standard of “preponderance of the evidence.” It is the standard of proof which is generally used in civil cases. This burden applies to:
• 60 Day Status Review. Tex. Fam. Code § 105.005;
• Permanency Hearing before Final Order. Tex. Fam. Code § 105.005;
• Final Order Awarding Permanent Managing Conservatorship (PMC) (without termination). Tex. Fam. Code § 105.005;
• Permanency Hearing after Final Order. Tex. Fam. Code § 105.005;
• Adoption Hearing. Tex. Fam. Code § 105.005; and
• Hearing on reinstatement of parental rights. Tex. Fam. Code § 161.303.
E. Clear and Convincing
To meet a “clear and convincing” burden of proof is to show the measure or degree of proof that will produce in the mind of the trier of fact (either a judge or a jury) a firm belief or conviction as to the truth of the allegations sought to be established. It is greater than a “Preponderance of the Evidence” but not as much as “Beyond a Reasonable Doubt.” The burden applies to:
• Termination of parental rights when the Indian Child Welfare Act (ICWA) does not apply. Tex. Fam. Code § 161.001; and
• An order placing a child in foster care under (ICWA). 25 U.S.C. § 1912(e).
F. Beyond a Reasonable Doubt
The standard “beyond a reasonable doubt” is met when the trier of fact is fully satisfied, or entirely convinced that something occurred. The burden applies to:
• Termination cases subject to the Indian Child Welfare Act. 25 U.S.C. §1912(f).
The “beyond a reasonable doubt” standard which applies in ICWA cases is the highest standard of proof in a termination of parental rights case under Texas law, signaling the weight of this decision on the trier of fact.