Texas Child Protection Law Bench Book

2023 version: As effective November 1, 2023

System Issues

Community-Based Care

A. What is Community-Based Care?

In 2017, DFPS started implementing Community-Based Care, also referred to as CBC, in certain geographic areas in the state, known as “catchment” or “community” areas. CBC is intended to delegate or outsource certain activities and decisions about foster care delivery and case management, and it is implemented with measurable goals related to these decisions. CBC is designed to be implemented in stages. Stage I of CBC involves a Single Source Continuum Contractor (SSCC) handling the responsibility of finding safe, high-quality, nearby homes for children in paid foster care in the designated community area. Stage II is when the SSCC assumes responsibility for case management duties, including serving as the witness in the legal proceeding and assuming court-related responsibilities and authority in terms of the permanency plan and goals and how those will be carried out. At each stage of CBC, the readiness of the provider to successfully partner with all stakeholders and to serve the children and families in its community area is critical to the success of the roll out.

B. The Single Source Continuum Contractor

Generally, an SSCC is a non-profit organization which has a focus on child welfare and by law must be formed as a charitable organization. A local governmental entity can also serve as an SSCC. As part of the readiness process, DFPS is required to consider whether an SSCC has demonstrated experience in providing services to children and families in the community area.[246] As part of an application to secure a contract for CBC, each SSCC must develop a Community Engagement Plan that includes details about how the SSCC will involve faith-based entities, the judiciary, CASA, Child Advocacy Centers (CAC), service providers, foster families, biological parents, youth currently and formerly in foster care, relatives, child welfare boards, attorneys for both children and parents, and any other stakeholder the SSCC wants to include. Formation as a charitable organization provides limited legal protection to the SSCC under Tex. Civ. Prac. & Rem. Code Chapter 84. The legal protections are limited to acts or omissions that occur while the entity or person is acting within the course and scope of the entity's contract with the Department as well as services provided and the person's duties for the entity and only if insurance coverage in the minimum amounts required by Tex. Civ. Prac. & Rem. Code Chapter 84 are in force and effect at the time of the cause of action for personal injury, death, or property damage accrues.

C. The Effect of CBC on Courts and Court Process

Stage II of CBC requires that DFPS turn over many court-related duties to the single, lead agency who serves the community area so that these duties become the responsibility of the SSCC and its subcontractors. Court-related duties will be the responsibility of the SSCC and its subcontractors, including preparation of court reports, appearing in court and mediation, offering testimony, complying with all court orders that would ordinarily bind DFPS, and ensuring the child is progressing toward the child's permanency goals in accordance with federally mandated guidelines. DFPS is the party to the lawsuit, and the SSCC acts as DFPS' agent. SSCC employees will confer with and operate under an attorney-client relationship with the DFPS legal counsel, whether DFPS is represented by a regional attorney, a county attorney, or a district attorney. Records that are related to the SSCC's provision of services in a community area are subject to the Public Information Act in the same manner as DFPS records.

D. Monitoring of the SSCC by DFPS

Rather than serve in its traditional role in CBC areas, DFPS provides quality oversight and assurance to ensure contract compliance, conduct assessments of fiscal and qualitative performance of the SSCC and vendors, as well as create and administer a dispute resolution process. DFPS must also monitor the transfer of case management services, and has the statutory authority to review, approve, or disapprove a contractor's recommendation with respect to a child's permanency goal.

E. The Role for Judges in Community-Based Care

The role for judges in all aspects of community-based care cannot be overstated. Judges are a critical partner in planning, implementation, and oversight of this model for provision of child welfare services and permanency. Judges are encouraged to work closely with DFPS and the Office of Community-Based Care Transition (OCBCT) as CBC expands into a community area where their court is located as well as to be in continued communications with all partners as Stage I is implemented. Stage II more directly impacts the courts. Judicial oversight remains critical both in legacy and CBC areas to ensure due process for children and families. This oversight includes ongoing communication with the SSCC to clarify roles and expectations, streamline required court and legal processes, and resolve any issues. As the process evolves, these children and families will be well served by judges who remain informed about the ever-changing landscape of CBC.

F. Community-Based Care Resources

In 2021, the Office of Community Based Care Transition was established as an independent office that is administratively attached to DFPS. The office assesses community areas where CBC services may be implemented, develop a plan for implementing CBC in each community area in Texas, including the order in which CBC will be implemented in each community area, a timeline for implementation, and an evaluation of CBC providers. Tex. Fam. Code § 264.172. Additional information about the implementation of CBC, including a map of the community areas and updates on the Implementation Plan, is available on the DFPS Community-Based Care webpage.[247]

Disproportionality and Equity

Introduction

Please see the Checklist Section for the Practical First Steps to Address Disproportionality and Implicit Bias checklist.

Background

Disproportionality is the overrepresentation or underrepresentation of a group within a social system at a rate or percentage that is not proportionate to their representation in the general population. Disparity refers to the differences in outcomes and conditions for some groups of people compared to other groups because of unequal treatment or services. African American and Native American children are disproportionally represented and have worse experiences and outcomes than Anglo children in the nation's child welfare system.

Disproportionality has most significantly affected African American children, with national data indicating that African American children represent 23% of children in foster care, although they represent only 14% of children in the general population.[248]^,[249] This overrepresentation of African American children has been observed in the child welfare system for more than thirty years, yet persists as a national concern.[250]^,[251]

Disproportionality and disparity can be seen in the experience and outcomes of other populations as well. For example, a 2019 research study by the University of Texas at Austin found that 30.4% of youth in foster care self-identify as Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) compared to 11.2% of youth who self-identify as LGBTQ in the general population.^[252] Compared to heterosexual youth in foster care, LGBTQ youth in foster care report greater disparities in terms of school performance, mental health, and victimization.[253]^,[254]

A. In Texas

In Texas, the issue of disproportionality and disparities is complex. DFPS data from FY 2022 show:

•   Statewide, compared to Anglo children, African American children are:

◦   1.9 times more likely to be reported,

◦   2.0 times more likely to be investigated, and

◦   1.7 times more likely to be removed.

•   Hispanic children had similar or better outcomes compared to Anglo children across many counties but not all counties statewide.

•   Most of the largest urban counties had negative disparities for Hispanic children compared to Anglo children; however, it should be noted these disparities were less pronounced than the disparities observed for African American children.

•   Across the state, the overall rate of decline in child removals was 40% between FY21 to FY22, and the rate of decline was highest for Hispanic children (44%) and lowest for African American children (31%).^[255]

After removal, African American children are less likely to reunify and, if reunification is ruled out, they wait longer for adoption than other populations. African American children are overrepresented in foster care, Anglo children are proportionately represented, and Hispanic children are underrepresented. However, most Hispanic children wait longer than Anglo children to be adopted.[256]

DFPS collects data at critical decision points in the CPS system by race and ethnicity to measure and understand the extent of disproportionality in the child welfare system. In 2022, DFPS established an Office of Addressing Disproportionality and Disparity with two State Disproportionality Managers and two program specialists who see efforts across all division of DFPS. The Office is tasked with providing support and training to DFPS staff to improve the response to disproportionality and disparate outcomes in CPS cases. More information can be found on the DFPS webpage Disproportionality in Child Protective Services System including information on The Texas Model, Texas Community Engagement Model, and other CPS initiatives.[257]

B. Addressing Equity

Many Texas judges want to know what they can do to combat disproportionality from the bench. As community leaders, judges are in a key position to lead efforts in their jurisdiction to address these important issues. Advancing equity in the child welfare system requires acknowledgement of the existing disparities and understanding root causes. Understanding the history of the community which a judge serves will provide a more robust context in which to assist the children and families before the court. Asking the question, “What is the family looking for and what does this family need?” will be easier to answer when acknowledging the breadth of each person's identity and experiences.

Efforts to partner across systems to provide training and strengthen awareness are ongoing. In March 2023, the Department of Family and Protective Services Disproportionality Managers co-presented a CLE entitled “Increasing Awareness and Advocacy around Disproportionality,” at the State Bar of Texas' 5^th Annual Advanced Child Protection Law Course.

In 2016, the Supreme Court of Texas and Texas Court of Criminal Appeals spearheaded the Beyond the Bench: Law, Justice, and Communities Summit. The Summit brought together leaders from various sectors of the community and participants generated several “Big Ideas” to addressing disproportionality and disparity. The ideas generated from this Summit provide practical steps for judges seeking to address disproportionality within their jurisdiction.

Some of these “Big Ideas” from the Summit as well as additional efforts that may be helpful in advancing equity at the local level include:

•   Convene judicially-led community meetings (or Courageous Conversations) to discuss planning, data, and desired outcomes in the context of the administration of justice.

◦   engaging diverse populations and community stakeholders in meaningful conversations and practice improvement will provide more meaningful avenues for change.[258] Local leaders in equity work might be good partners to inform and further efforts to address these issues in child welfare.

◦   obtaining and understanding a court's data as it relates to disproportionality and disparity.

•   Work with court stakeholders to understand and address issues presented by local and regional data. Ask an independent party or organization, outside of the court, to track demographics including race with the intention of evaluating and checking assumptions about what the data reveals.

•   Explore the need, feasibility, and sustainability of a specialty court docket such as drug, mental health, and veteran courts.

◦   consult the Texas Specialty Courts Resource Center for support and more information.

•   Educate all members of the court system about the various roles others have to create a more unified system that can help with all aspects of the needs of the individuals.

•   Prioritize training regarding implicit bias for all court stakeholders.

◦   there are many trainings available on equity and implicit bias, in-person and online, that can educate court staff.

•   Utilize a checklist to provide reminders during a case to be aware of and guard against bias. The National Council of Juvenile and Family Court Judges (NCJFCJ) developed the Courts Catalyzing Change Preliminary Protective Hearing Benchcard, a practical and concrete judicial tool for use at the first court hearing. This bench card reflects best practices for one of the most critical stages in a child abuse and neglect case.[259] Additionally, the Children's Commission has created a bench card for quick reference. Please see the Practical First Steps to Address Disproportionality and Implicit Bias Bench Card in the Checklist section of this Bench Book.

◦   creating common language among court stakeholders is an important step to establish an understanding of race equity and inclusion principles.[260]

Key concepts to understand include:

•   Equity refers to “the effort to provide different levels of support based on an individual's or group's needs in order to achieve fairness in outcomes. Working to achieve equity acknowledges unequal starting places and the need to correct the imbalance.”^[261]

•   Structural, institutional, or systemic bias refers to a “set of processes that produce unfairness in the courtroom . . . [which] lock in past inequalities, reproduce them, and . . . exacerbate them . . . without formally treating persons worse simply because of attitudes and stereotypes about the groups to which they belong.” [262]

•   Explicit bias “refers to attitudes and beliefs that are consciously held about a person or group of people.”[263]

•   Implicit bias “refers to subconscious feelings, attitudes, and stereotypes that affect our understanding, actions, and decision-making processes in an unconscious manner.”[264]

C. Additional Resources

•   “Equity as a Foundation for a Trauma-Informed Court” presentation during the Judicial Trauma Institute[265]

•   Project Implicit, Implicit Association Test (IAT)[266]

•   Kirwan Institute for the Study of Race and Ethnicity, Making Sense of Your IAT Results[267]

•   NCJFCJ, Addressing Bias in Delinquency and Child Welfare Systems Bench Card [268]

•   The Annie E. Casey Foundation, Race Equity and Inclusion Action Guide: Seven Steps to Advance and Embed Race Equity and Inclusion within Your Organization[269]

•   The American Bar Association, Race and Poverty Bias in the Child Welfare System: Strategies for Child Welfare Practitioners[270]

•   Center for the Study of Social Policy (CSSP), Key Equity Terms and Concepts: A Glossary for Shared Understanding [271]

•   Child Welfare Information Gateway, Disproportionality Resource Page[272]

•   The American Bar Association, Implicit Bias Videos and Toolkit[273]

•   National Center for State Courts, 2020 Ensuring Justice in Child Welfare Summit[274]

•   Beyond the Bench: Law, Justice, and Communities Summit and Toolkit sponsored by the Supreme Court of Texas and Texas Court of Criminal Appeals.[275]

Dual Status

A. Definitions

A “dual system child” is a child who, prior to the child's 18th birthday, was referred to the juvenile justice system and was involved in the child welfare system. Tex. Fam. Code § 51.11.

A "dual status child" means a child who has been referred to the juvenile justice system and is:

•   In the temporary or permanent managing conservatorship of the Department of Family and Protective Services;

•   The subject of a case for which family-based safety services have been offered or provided by the department;

•   An alleged victim of abuse or neglect in an open child protective investigation; or

•   A victim in a case in which, after an investigation, the department concluded there was reason to believe the child was abused or neglected. Tex. Fam. Code § 51.02(3-a).

B. Data on Dual Status Youth

National studies provide some insight of the intersect between youth who experience both the child welfare system and the juvenile justice system. Children and youth who experience abuse or neglect are at a 47% greater risk of being juvenile justice involved, compared to the general population.[276] Females and African American youth are disproportionately represented among youth involved in both the child welfare and juvenile justice systems compared to their peers with involvement in one of these systems.[277] Among youth involved in both systems, 92% first experience the child welfare system then become juvenile justice involved.[278] Although prevalence is hard to quantify and dependent on the definition used for the population, it is estimated that 45-75% of first-time juvenile petitions involve dual system youth.[279] Involvement in both the child welfare and juvenile justice systems is associated with higher risks for mental health, education, and vocation challenges as well as higher rates of recidivism, longer stays in detention, placement instability, and poor permanency outcomes.[280]

C. Guardian ad Litems and Court Appointed Special Advocates

A guardian ad litem may serve in both the juvenile case and the child welfare case. If the guardian ad litem is serving in both cases and is an attorney, the guardian ad litem may need to become more familiar with the juvenile proceedings.

A non-attorney guardian ad litem must be very careful not to investigate any pending juvenile charges nor offer testimony concerning the guilt or innocence of a dual status child. Questions or investigations could lead the non-attorney guardian ad litem to become a witness against the child in violation of Tex. Fam. Code 51.11.

D. Considerations for Dual Status Youth

Several large, urban areas have implemented the Crossover Youth Practice Model developed by Georgetown University or the RFK Children's Action Corps Dual Status Youth and Probation Reform Models, including Travis, Bexar, Harris, McLennan, Tarrant, El Paso, and Dallas Counties.[281] The Child Protection Courts also have jurisdiction to hear dual status cases pursuant to Tex. Fam. Code Chapters 51 and 201. These courts utilize a “one family, one court” model where the same judge hears both the child welfare and juvenile justice cases.

For cases involving dual status youth, some court considerations include:

•   Upcoming court dates for both the child welfare and juvenile cases;

•   Progress of each case;

•   What services are being provided in each case;

•   Disposition in the juvenile case, including placement options if the child is not going to be released on probation; and

•   Whether the records in the juvenile case can later be sealed.[282]