Texas Child Protection Law Bench Book

2023 version: As effective November 1, 2023

After Removal

Introduction

After a court has authorized emergency removal of a child, there are statutorily required actions the both the court and DFPS must take prior to the Adversary Hearing.

A. Procedures after Order Authorizing Removal

1. Duration of Temporary Order, Temporary Restraining Order, and Attachment

A temporary order, temporary restraining order, or attachment of the child issued under Tex. Fam. Code § 262.102(a) expires not later than 14 days after the date it is issued unless it is extended as provided by Tex. R. Civ. P. 680 or Tex. Fam. Code § 262.201(a-5), (e), or (e-1). Tex. Fam. Code § 262.103.

2. Temporary Managing Conservatorship

The court has the authority to issue a temporary order as described in Tex. Fam. Code § 105.001, including an order for temporary conservatorship of a child, which may be rendered without notice and an Adversary Hearing if the order is an emergency order sought by a governmental entity. Tex. Fam. Code § 105.001(h).

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code § 153.002.

The managing conservator must be a parent, a competent adult, DFPS, or a licensed child-placing agency. Tex. Fam. Code § 153.005(b).

A voluntary agreement to temporary managing conservatorship cannot be used as an admission by the parent that the parent engaged in conduct that endangered the child. Tex. Fam. Code § 262.013.

The rights and duties of a non-parent appointed as managing conservator are listed in Tex. Fam. Code § 153.371.

A temporary order in a suit affecting a parent-child relationship rendered in accordance with Tex. Fam. Code § 105.001 is not required to include a temporary parenting plan. The court may not require the submission of a temporary parenting plan in any case by local rule or practice. Tex. Fam. Code § 153.602.

3. Setting Date for Full Adversary Hearing

Unless the child has already been returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession and the temporary order, if any, has been dissolved, a full Adversary Hearing shall be held not later than the 14th day after the date of the child was taken into possession by the governmental entity, unless the court grants an extension under Tex. Fam. Code § 262.201(e) or (e-1). Tex. Fam. Code § 262.201(a).

B. Attorney ad Litem and Guardian ad Litem Appointments

1. Mandatory Appointment of Attorney ad Litem and Guardian ad Litem

In a suit filed by a governmental entity requesting termination of the parent-child relationship or to be named conservator of a child, the court shall appoint an attorney ad litem to represent the interests of the child immediately after the filing, but before the full Adversary Hearing, to ensure adequate representation of the child. Tex. Fam. Code § 107.012. For more information regarding the role and responsibilities of an attorney ad litem, see Tex. Fam. Code § 107.003 and Tex. Fam. Code § 107.004.

In a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for a child, the court shall appoint a guardian ad litem to represent the best interests of the child immediately after the filing of the petition but before the full Adversary Hearing. Tex. Fam. Code § 107.011(a). For more information regarding the role and responsibilities of a guardian ad litem, see Tex. Fam. Code § 107.002.

2. Discretionary Appointment of Parent Attorney

Tex. Fam. Code § 107.0141 states that the court may appoint an attorney ad litem to represent the interests of a parent for a limited period beginning at the time the court issues a temporary restraining order or attachment of the parent's child under Tex. Fam. Code Chapter 262 and ending on the court's determination of whether the parent is indigent before commencement of the full Adversary Hearing. Tex. Fam. Code § 107.0141(a).

An attorney ad litem appointed for a parent under this section:

•   Has the powers and duties of an attorney ad litem appointed under Tex. Fam. Code § 107.0131; and

•   If applicable, shall:

◦   conduct an investigation regarding the petitioner's due diligence in locating and serving citation on the parent; and

◦   interview any parent or other person who may have information relating to the identity or location of the parent. Tex. Fam. Code § 107.0141(b).

If the attorney ad litem identifies and locates the parent, the attorney ad litem shall:

•   Inform the parent of the parent's right to be represented by an attorney ad litem appointed by the court, if the parent is indigent and appears in opposition to the suit;

•   If the parent claims indigence and requests an attorney ad litem beyond the period of time the temporary appointment under Tex. Fam. Code § 107.0141, assist the parent in making a claim of indigence for the appointment of an attorney ad litem; and

•   Assist the parent in preparing for the full Adversary Hearing under Tex. Fam. Code Chapter 262, Subchapter C. Tex. Fam. Code § 107.0141(c).

If the court determines the parent is indigent, the court may appoint the attorney ad litem to continue to represent the parent under Tex. Fam. Code § 107.013(a)(1). Tex. Fam. Code § 107.0141(d).

If the attorney ad litem is unable to identify or locate the parent, the attorney ad litem shall submit to the court a written summary of the attorney ad litem's efforts to identify or locate the parent with a statement that the attorney ad litem was unable to identify or locate the parent. On receipt of the summary required by Tex. Fam. Code § 107.0141(e), the court shall discharge the attorney ad litem from the appointment. Tex. Fam. Code § 107.0141(e).

If the attorney ad litem identifies or locates the parent, and the court determines that the parent is not indigent, the court shall discharge the attorney ad litem from the appointment. Tex. Fam. Code § 107.0141(f).

3. Court-Maintained Appointment Lists

Each court in this state shall establish and maintain a list of all attorneys who are qualified to serve as an attorney or guardian ad litem or mediator and are registered with the court. Tex. Gov't Code § 37.003(a). Guardians ad litem or other persons appointed under a program authorized by Tex. Fam. Code § 107.031 are exempt from this list. Tex. Gov't Code § 37.002. A court annually shall post each list at the courthouse of the county in which the court is located and on any Internet website of the court. Tex. Gov't Code § 37.005. Courts will also be required to use a rotation system to appoint attorneys unless certain exceptions apply. Tex. Gov't Code § 37.004.

Additionally, the clerk of each court shall prepare a report on court appointments for an attorney ad litem, guardian ad litem, guardian, mediator, or competency evaluator for a case before the court in the preceding month or note that no appointments were made for the preceding month. Tex. Gov't Code § 36.004(a). The report on court appointments must include:

•   The name of each person appointed by the court as an attorney ad litem, guardian ad litem, guardian, mediator, or competency evaluator for a case in that month;

•   The name of the judge and the date of the order approving compensation to be paid to a person appointed as an attorney ad litem, guardian ad litem, guardian, mediator, or competency evaluator for a case in that month;

•   The number and style of each case in which a person was appointed as an attorney ad litem, guardian ad litem, guardian, mediator, or competency evaluator for a case in that month;

•   The number of cases each person was appointed by the court to serve as an attorney ad litem, guardian ad litem, guardian, mediator, or competency evaluator for a case in that month;

•   The total amount of compensation paid to a person appointed to serve as an attorney ad litem, guardian ad litem, guardian, mediator, or competency evaluator appointed by the court in that month and the source of the compensation; and

•   If the total amount of compensation paid to a person appointed to serve as an attorney ad litem, guardian ad litem, guardian, mediator, or competency evaluator for one appointed case in that month exceeds $1,000, any information related to the case that is available to the court on the number of hours billed to the court for the work performed by the person or the person's employees, including paralegals, and the billed expenses. Tex. Gov't Code § 36.004(a)(1)-(6).

Not later than the 15th day of each month, the clerk of the court shall:

•   Submit a copy of the report to the Office of Court Administration; and

•   Post the report at the courthouse of the county in which the court is located and on any Internet website of the court. Tex. Gov't Code § 36.004(b).

If a court fails to provide to the clerk of the court information required for the report submitted under Tex. Gov't Code § 36.004, the court is ineligible for any grant money awarded by this state or a state agency for the next state fiscal biennium. Tex. Gov't Code § 36.005.

Each county must biannually report to the Texas Indigent Defense Commission a copy of all formal and informal rules and forms governing the procedures the county uses to provide indigent parents and children with counsel, any fee schedule used by the court, and information on the court's compliance with Tex. Gov't Code Chapter 37 including the lists and rotation system required under that chapter. Counties must also annually report information on the number of appointments made to each attorney and information provided to the county by those attorneys under Tex. Fam. Code § 107.0042. Tex. Gov't Code § 79.0365.

4. Office of Child Representation and Office of Parent Representation and Managed Assigned Counsel Program

a. Office of Child Representation and Office of Parent Representation

The Texas Family Code authorizes governmental entities, including a county or group of counties, to create offices of child representation or parent representation. Tex. Fam. Code Chapter 107, Subchapter E; Tex. Fam. Code § 107.251; Tex. Fam. Code § 107.252; Tex. Fam. Code § 107.253; Tex. Fam. Code § 107.256; Tex. Fam. Code § 107.258; Tex. Fam. Code § 107.259; Tex. Fam. Code § 107.260; Tex. Fam. Code § 107.261; and Tex. Fam. Code § 107.262.

An office of child representation is an entity that uses public money to provide legal representation and services for a child in a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for the child in which the appointment is mandatory for a child under Tex. Fam. Code § 107.012. Tex. Fam. Code § 107.254.

An office of parent representation is an entity that uses public money to provide legal representation and services for a parent in a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for the child in which the appointment is mandatory for a parent under Tex. Fam. Code § 107.013. Tex. Fam. Code § 107.255.

b. Managed Assigned Counsel Program for the Representation of Certain Children and Parents

The Texas Family Code also includes provisions authorizing the creation of managed assigned counsel programs. Tex. Fam. Code Chapter 107, Subchapter F; Tex. Fam. Code § 107.101; Tex. Fam. Code § 107.102; Tex. Fam. Code § 107.103; Tex. Fam. Code § 107.104; Tex. Fam. Code § 107.105; Tex. Fam. Code § 107.106; Tex. Fam. Code §107.107; and Tex. Fam. Code § 107.108.

A managed assigned counsel program may be operated with public money for the purpose of appointing counsel to provide legal representation and services for a child or parent in a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for the child in which appointment is mandatory for a child under Tex. Fam. Code § 107.012 and for a parent under Tex. Fam. Code § 107.013. Tex. Fam. Code § 107.102(a).

5. Duties, Required Training, and Duration of Appointment of Child's Attorney Ad Litem

The duties and responsibilities of an attorney ad litem are found in Tex. Fam. Code § 107.003 and Tex. Fam. Code § 107.004. The duties of an attorney ad litem apply to suites filed under Tex. Fam. Code Chapters 262, 263, and 264. A few specific duties of the attorney ad litem include the following:

Tex. Fam. Code § 107.004 requires that the attorney for the child report to the court at each hearing whether they met with the child or their caregiver prior to the hearing as required by Tex. Fam. Code § 107.004(d)(1), or whether they are requesting a finding of cause that meeting with the child was not feasible or in the best interest of the child. If the attorney represents a child in a Residential Treatment Center (RTC), Qualified Residential Treatment Program (QRTP), or similar setting, the attorney has additional required duties under Tex. Fam. Code § 107.004(f).

The required meeting under Tex. Fam. Code § 107.004(d) must take place:

•   A sufficient time before the hearing to allow the attorney ad litem to prepare for the hearing in accordance with the child's expressed objectives of representation; and

•   In a private setting that allows for confidential communications between the attorney ad litem and the child or individual with whom the child ordinarily resides, as applicable. Tex. Fam. Code § 107.004(d-1).

Tex. Fam. Code § 107.004(d-2) also requires that an attorney ad litem appointed to represent a child in the managing conservatorship of DFPS shall, before each scheduled hearing under Tex. Fam. Code Chapter 263 and 264, determine whether the child's educational needs and goals have been identified and addressed. Tex. Fam. Code § 107.004(d-2).

Tex. Fam. Code § 107.004(d-3) requires that an attorney ad litem review the child's safety and well-being, including any effects of trauma to the child, and take appropriate action, including requesting a review hearing when necessary to address an issue of concern. Attorneys ad litem must also provide proof that the attorney completed a training program on trauma-informed care and the effect of trauma on children in DFPS conservatorship. Tex. Fam. Code § 107.004(b-1)(2).

Tex. Fam. Code § 107.016 requires an order appointing DFPS managing conservatorship to continue the appointment of the AAL or the GAL, or the attorney serving in the dual role for the child, as long as the child is in DFPS Conservatorship. The court may continue the appointment of both the AAL and the GAL.

6. Duties and Duration of Appointment of Parent Attorney

Tex. Fam. Code § 107.0131 requires an attorney appointed to represent a parent to abide by the parent's objectives for representation. Tex. Fam. Code § 107.0131(a)(1)(H).

Tex. Fam. Code § 107.016 provides for continuity of representation for parents who appeal a termination or managing conservatorship order, stating:

•   An order appointing DFPS as the child's managing conservator may provide for the continuation of the appointment of the guardian ad litem or attorney ad litem for the child as long as the child is in the Department's managing conservatorship; and

•   An attorney appointed under Tex. Fam. Code Chapter 107, Subchapter B to serve as an attorney ad litem for a parent or an alleged father continues to serve in that capacity until the earliest of:

◦   the date the suit affecting the parent-child relationship is dismissed;

◦   the date all appeals in relation to any final order terminating parental rights are exhausted or waived; or

◦   the date the attorney is relieved of the attorney's duties or replaced by another attorney after a finding of good cause is rendered by the court on the record. Tex. Fam. Code § 107.016.

7. Duties of Parent Appointed to Represent Alleged Father

Except as otherwise provided by Tex. Fam. Code § 107.0132(b) and (d), an attorney ad litem appointed under Tex. Fam. Code § 107.013 to represent the interests of an alleged father is required to:

•   Conduct an investigation regarding the petitioner's due diligence in locating the alleged father, including by verifying that the petitioner has obtained a certificate of the results of a search of the paternity registry under Tex. Fam. Code Chapter 160;

•   Interview any party or other person who has significant knowledge of the case who may have information relating to the identity or location of the alleged father; and

•   Conduct an independent investigation to identify or locate the alleged father, if applicable. Tex. Fam. Code § 107.0132(a).

Tex. Fam. Code § 107.0132 provides duties for an attorney appointed to represent an alleged father who cannot be located. Specifically, those duties are limited to conducting an investigation regarding the petitioner's due diligence in locating the alleged father, and conducting an independent investigation to locate the father, including interviewing parties or persons with knowledge of the identity or location of the alleged father. If located, the attorney ad litem shall provide to each party and the court the alleged father's name and locating information. If appropriate, the court may allow the attorney to assist the alleged father in establishing paternity. If the alleged father is adjudicated to be a parent of the child and is determined by the court to be indigent, the court may appoint the attorney ad litem to continue to represent the father's interests as a parent under Tex. Fam. Code § 107.013(a)(1) or (c). Tex. Fam. Code § 107.0132.

If the attorney ad litem is unable to identify or locate the alleged father, the attorney ad litem shall submit to the court a written summary of the attorney ad litem's efforts to identify or locate the alleged father with a statement that the attorney ad litem was unable to identify or locate the alleged father. Tex. Fam. Code § 107.0132. On receipt of the summary required by Tex. Fam. Code § 107.0132(d), the court shall discharge the attorney from the appointment. Tex. Fam. Code § 107.0132(d).

8. Duties of Attorneys Appointed to Represent Parents Whose Identity or Location is Unknown or Who Has Been Cited by Publication

Tex. Fam. Code § 107.014 addresses situations when an attorney is appointed to represent a parent whose identity or location is unknown or who has been cited by publication.

a. Duties

Except as provided by Tex. Fam. Code § 107.014(b) and (e), an attorney ad litem appointed under Tex. Fam. Code § 107.013 to represent the interests of a parent whose identity or location is unknown or who has been served by citation by publication is only required to:

•   Conduct an investigation regarding the petitioner's due diligence in locating the parent;

•   Interview any party or other person who has significant knowledge of the case who may have information relating to the identity or location of the parent; and

•   Conduct an independent investigation to identify or locate the parent, as applicable. Tex. Fam. Code § 107.014(a).

b. If Parent Identified and Located

If the attorney ad litem identifies and locates the parent, the attorney ad litem shall:

•   Provide to each party and the court the parent's name and address and any other available locating information unless the court finds that:

◦   disclosure of a parent's address is likely to cause that parent harassment, serious harm, or injury; or

◦   the parent has been a victim of family violence; and

•   If appropriate, assist the parent in making a claim of indigence for the appointment of an attorney. Tex. Fam. Code § 107.014(b).

If the court makes a finding described by Tex. Fam. Code § 107.014(b)(1)(A) or (B), the court may:

•   Order that the information not be disclosed; or

•   Render any other order the court considers necessary. Tex. Fam. Code § 107.014(c).

If the court determines the parent is indigent, the court may appoint the attorney ad litem to continue to represent the parent under Tex. Fam. Code § 107.013(a)(1). Tex. Fam. Code § 107.014(d).

c. If Parent Not Located or Identified

If the attorney ad litem is unable to identify or locate the parent, the attorney ad litem shall submit to the court a written summary of the attorney ad litem's efforts to identify or locate the parent with a statement that the attorney ad litem was unable to identify or locate the parent. On receipt of the summary required by Tex. Fam. Code § 107.014(e), the court shall discharge the attorney from the appointment. Tex. Fam. Code § 107.014(e).

9. Required Attorney Training

Tex. Fam. Code § 107.004 requires continuing legal education for attorneys appointed to represent children. An attorney ad litem appointed for a child in a proceeding under Tex. Fam. Code Subtitle E shall complete at least three hours of continuing legal education relating to representing children in child protection cases as described in Tex. Fam. Code § 107.004(c) as soon as practicable after the attorney ad litem is appointed per Tex. Fam. Code § 107.004(b). An attorney ad litem is not required to comply with Tex. Fam. Code § 107.004(d) if the court finds that the attorney ad litem has experience equivalent to the required education. Tex. Fam. Code § 107.004(b).

An attorney who is on the list maintained by the court as being qualified for appointment as an attorney ad litem for a child in a child protection case must complete at least three hours of continuing legal education relating to the representation of a child in a proceeding under Tex. Fam. Code Subtitle E each year before the anniversary date of the attorney's listing. Tex. Fam. Code § 107.004(b-1). The continuing legal education must focus on the duties of an attorney ad litem in, and the procedures of and best practices for, representing a child in a proceeding under Tex. Fam. Code Subtitle E. Tex. Fam. Code § 107.004(c)(2). Additionally, attorneys must complete a training program regarding trauma-informed care and the effect of trauma on children in the conservatorship of DFPS. Tex. Fam. Code § 107.004(b-1)(2). Completing the trauma training may satisfy the training requirement of Tex. Fam. Code § 107.004(b-1).

Tex. Fam. Code § 107.0131 provides enumerated duties for parents' attorneys, including three hours of CLE training and meeting with the client before each hearing. Tex. Fam. Code § 107.0131 also requires that the continuing legal education relate to representing parents in child protection cases and focus on the duties of an attorney ad litem in, and the procedures of and best practices for, representing a parent in a proceeding under Tex. Fam. Code Subtitle E. Tex. Fam. Code § 107.0131(b)(2). An attorney who is on the list maintained by the court as being qualified for appointment as an attorney ad litem for a parent in a child protection case must complete at least three hours of continuing legal education relating to the representation of a parent in a proceeding under Tex. Fam. Code Subtitle E each year before the anniversary date of the attorney's listing. Tex. Fam. Code § 107.0131(c).

10. Notice Requirement to Parent Regarding Legal Representation

The temporary order, temporary restraining order, or attachment of a child rendered by the court must contain the following statement prominently displayed in boldface type, capital letters, or underlined:

“YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT AND UNABLE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT OF AN ATTORNEY BY CONTACTING THE COURT AT [ADDRESS], [TELEPHONE NUMBER]. IF YOU APPEAR IN OPPOSITION TO THE SUIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN ATTORNEY, THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND THE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL APPOINT AN ATTORNEY TO REPRESENT YOU.” Tex. Fam. Code § 262.102(d).

DFPS or other agency must give written notice to each parent of the child or to the child's conservator or legal guardian when a representative of DFPS or other agency takes possession of a child. Tex. Fam. Code § 262.109(a).

The written notice must be given as soon as practicable, but in any event not later than the first business day after the date the child is taken into possession. Tex. Fam. Code § 262.109(b).

The written notice requirements must include, among other things:

•   The reasons why the child was removed;

•   Contact information for the caseworker;

•   A summary of legal rights; and

•   A statement that the parent has the right to hire an attorney. Tex. Fam. Code § 262.109(c).

The court may, but is not required to, waive the required notice under special circumstances, such as:

•   The inability to locate the parent or caretaker;

•   The child is an abandoned infant delivered to an emergency care provider; or

•   For other good cause. Tex. Fam. Code § 262.109(d).

C. Information Provided to Relatives and Certain Individuals

When DFPS takes possession of a child under Tex. Fam. Code Chapter 262, DFPS shall provide information in writing to each adult who DFPS is able to identify and locate and who is:

•   Related to the child within the fourth degree of consanguinity;

•   An adult relative of the alleged father if DFPS has a reasonable basis to believe the alleged father is the child's biological father; or

•   Identified as a potential relative or designated caregiver as defined by Tex. Fam. Code § 264.751 on the proposed Child Placement Resources Form provided under Tex. Fam. Code § 261.307 and may provide information regarding an adult who DFPS determines has a long-standing and significant relationship with the child. Tex. Fam. Code § 262.1095(a).

•   The written notice must include, among other things:

◦   notice that the child is in the state's custody;

◦   options available for participation in the care and placement and support of the family, the methods by which the individual may exercise those options, and any requirements the individual must satisfy to exercise those options, including the requirement that the individual be evaluated by the DFPS under Tex. Fam. Code § 262.114 before the individual may serve as a substitute caregiver; and the deadlines before which the individual must respond to exercise those options;

◦   options that may be lost if the individual fails to timely respond;

◦   the date, time, and location of the Status Hearing, if applicable; and

◦   information regarding the procedures and timeline for a suit affecting the parent-child relationship. Tex. Fam. Code § 262.1095(b).

DFPS is not required to provide information to a person who has criminal or family violence history. Tex. Fam. Code § 262.1095(c).

DFPS must provide the information immediately after the person has been identified and located. Tex. Fam. Code § 262.1095(d-1).

DFPS must use due diligence to identify and locate all individuals described by Tex. Fam. Code § 262.1095(a) within 30 days of the date DFPS files the SAPCR. Tex. Fam. Code § 262.1095(d). The failure of a parent or alleged father to complete the Child Placement Resources Form does not relieve DFPS of its duty to seek information about persons under Tex. Fam. Code § 262.1095(d). Tex. Fam. Code § 262.1095(e).

D. Service of Citation

The following are entitled to service of citation on the filing of a petition in an original suit:

•   A managing conservator;

•   A possessory conservator;

•   A person having possession of or access to the child under an order;

•   A person required by law or by order to provide for the support of the child;

•   A guardian of the person of the child;

•   A guardian of the estate of the child;

•   Each parent as to whom the parent-child relationship has not been terminated or process has not been waived under Tex. Fam. Code Chapter 161;

•   An alleged father, unless there is attached to the petition an affidavit of waiver of interest in a child executed by the alleged father as provided by Tex. Fam. Code Chapter 161 or unless the petitioner has complied with the provisions of Tex. Fam. Code § 161.002(b)(2), (b)(3), or (b)(4);

•   A man who has filed a notice of intent to claim paternity as provided by Tex. Fam. Code Chapter 160;

•   DFPS, if the petition requests that DFPS be appointed as managing conservator of the child;

•   The Title IV-D agency, if the petition requests the termination of the parent-child relationship and support rights have been assigned to the Title IV-D agency under Tex. Fam. Code Chapter 231;

•   A prospective adoptive parent to whom standing has been conferred under Tex. Fam. Code § 102.0035; and

•   A person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Tex. Fam. Code Chapter 161 or to whom consent to adoption has been given in writing under Tex. Fam. Code Chapter 162. Tex. Fam. Code § 102.009(a).

Alleged fathers are not parents as defined in Tex. Fam. Code § 101.024 and do not have the right to a court-appointed attorney other than one appointed pursuant to Tex. Fam. Code § 107.013(a)(3) to monitor the due diligence of DFPS in checking the paternity registry under Tex. Fam. Code Chapter 160. However, alleged fathers have the right to service of citation unless that right is waived in an affidavit of waiver of interest in the child or forfeited by failing to register with the paternity registry. Tex. Fam. Code § 102.009(a)(8).

Citation may be served on any other person who has or who may assert an interest in the child. Tex. Fam. Code § 102.009(b).

Citation on the filing of an original petition in a suit shall be issued and served as in other civil cases. Tex. Fam. Code § 102.009(c).

1. Waiver of Citation

Tex. Fam. Code § 102.0091 allows for waiver of citation. A party to a suit under Tex. Fam. Code Title 5 may waive the issuance or service of citation after the suit is filed by filing with the clerk of the court in which the suit is filed the waiver of the party acknowledging receipt of a copy of the filed petition. Tex. Fam. Code § 102.0091(a).

The party executing the waiver may sign the waiver using a digitalized signature. Tex. Fam. Code § 102.0091(b). The waiver must contain the mailing address of the party executing the waiver. Tex. Fam. Code § 102.0091(c).

Notwithstanding Tex. Civ. Prac. & Rem. Code § 132.001, the waiver must be sworn before a notary public who is not an attorney in the suit, unless the party executing the waiver is incarcerated. Tex. Fam. Code § 102.0091(d). The Texas Rules of Civil Procedure do not apply to a waiver executed under Tex. Fam. Code § 102.0091. Tex. Fam. Code § 102.0091(e).

E. Evaluation of Identified Relatives and Other Designated Individuals

1. Background/Criminal History Checks

Before a full Adversary Hearing, DFPS must perform a background and criminal history check on the relatives or other designated individuals identified as a potential relative or designated caregiver, as defined by Tex. Fam. Code § 264.751, on the proposed Child Placement Resources Form provided under Tex. Fam. Code § 261.307.

DFPS shall determine which relative or other designated individual would be the most appropriate substitute caregiver, if any, before the full Adversary Hearing. Until DFPS identifies such a caregiver, DFPS must continue to explore substitute caregiver options. The time frames do not apply to a relative or other designated individual located in another state. Tex. Fam. Code § 262.114(a).

For more on out of state placements, see generally the Interstate Compact on Placement of Children[3] and The Interstate Compact on the Placement of Children (ICPC) chapter of this Bench Book.

2. Home Study Filed with Court

At the full Adversary Hearing, DFPS shall, after redacting any social security numbers, file with the court:

•   A copy of each proposed Child Placement Resources Form completed by the parent or other person having legal custody of the child;

•   A copy of any completed home study performed; and

•   The name of the relative or other designated caregiver, if any, with whom the child has been placed. Tex. Fam. Code § 262.114(a-1) and record the results of home studies of relatives or designated caregivers in IMPACT. Tex. Fam. Code § 262.114(a-3).

If the child has not been placed with a relative or other designated caregiver by the time of the full Adversary Hearing, DFPS shall file with the court a statement that explains:

•   The reasons why DFPS has not placed the child with a relative or other designated caregiver listed on the proposed Child Placement Resources Form; and

•   The actions DFPS is taking, if any, to place the child with a relative or other designated caregiver. Tex. Fam. Code § 262.114(a-2).

DFPS must record the results of the home studies of relatives or designated caregivers in the Information Management Protecting Adults and Children in Texas (IMPACT) system. Tex. Fam. Code § 262.114(a-3).

F. Placement

1. Child Placement Resources Form

DFPS may place a child with a relative or other designated caregiver identified on the proposed Child Placement Resources Form.

DFPS:

•   Must determine that the placement is in the best interest of the child;

•   Must complete the background and criminal history check and conduct a preliminary evaluation of the relative or other designated caregiver's home before the child is placed with the relative or other designated caregiver;

•   May place the child before conducting the background and criminal history check or home study required by Tex. Fam. Code § 262.114(a). Not later than 48 hours after the time that the child is placed with the relative or other designated caregiver, DFPS shall begin the home study of the relative or other designated caregiver. DFPS shall complete the home study as soon as possible unless otherwise ordered by a court; and

•   Shall provide a copy of an informational manual required under Tex. Fam. Code § 261.3071 to the relative or other designated caregiver at the time of the child's placement. Tex. Fam. Code § 262.114(b).

•   Must give preference in hierarchical order, from relatives, fictive kin, foster homes, and GROs. Tex. Fam. Code § 262.114(d).

If a child is not placed with a relative, the court shall at each hearing under Tex. Fam. Code Chapter 262, include in its findings a statement on whether DFPS has elicited information regarding potential caregivers from the child. Tex. Fam. Code § 262.0022(1).

A foster parent with whom the child previously resided shall be considered for placement if:

•   DFPS determines that placement of the child with a relative or designated caregiver is not in the child's best interest; and

•   The placement is available and is in the child's best interest. Tex. Fam. Code § 262.114(c).

2. Caregiver Visit with Child; Information

Before placing a child with a proposed relative or other designated caregiver, DFPS must:

•   Arrange a visit between the child and the proposed caregiver; and

•   Provide the proposed caregiver with a form (which may be the same form DFPS provides to nonrelative caregivers) containing information, to the extent it is available, about the child that would enhance continuity of care for the child, including:

◦   the child's school information and educational needs;

◦   the child's medical, dental, and mental health care information;

◦   the child's social and family information; and

◦   any other information about the child DFPS determines will assist the proposed caregiver in meeting the child's needs. Tex. Fam. Code § 264.7541(a).

DFPS may waive the requirements if the proposed relative or other designated caregiver has a long-standing or significant relationship with the child and has provided care for the child at any time during the 12 months preceding the date of the proposed placement. Tex. Fam. Code § 264.7541(b).

3. Unacceptable Facilities for Housing Child

When a child is taken into possession and no allegations of delinquent conduct, conduct in need of supervision, or criminal conduct have been made, that child may not be held in isolation or in a jail, juvenile detention facility, or other secure detention facility. Tex. Fam. Code § 262.108.

G. Visitation Schedule

1. Visitation with Certain Children

DFPS must develop a temporary visitation schedule for children in in the temporary managing conservatorship of DFPS when the goal is reunification with the child's parent. Tex. Fam. Code § 262.115(b).

DFPS shall ensure that a parent who is otherwise entitled to possession of the child has an opportunity to visit the child not later than the fifth day after the date DFPS is named temporary managing conservator of the child unless:

•   DFPS determines that visitation is not in the child's best interest; or

•   Visitation with the parent would conflict with a court order relating to possession of or access to the child. Tex. Fam. Code § 262.115(c).

2. Temporary Visitation Schedule

Before a hearing conducted under Tex. Fam. Code Chapter 262, Subchapter C, DFPS in collaboration with each parent of the child must develop a temporary visitation schedule for the child's visits with each parent. The visitation schedule may conform to the minimum visitation policies of DFPS. DFPS shall consider the factors listed in Tex. Fam. Code § 263.107(c) in developing the temporary visitation schedule. Unless modified by court order, the schedule remains in effect until a visitation plan is developed under Tex. Fam. Code § 263.107. Tex. Fam. Code § 262.115(d).

DFPS may include the temporary visitation schedule in any report DFPS submits to the court before or during a hearing under Tex. Fam. Code Chapter 262, Subchapter C. The court may render any necessary order regarding the temporary visitation schedule. Tex. Fam. Code § 262.115(e).

H. Placement of Child Victim of Human Trafficking

A court in an emergency, initial, or full Adversary Hearing conducted under Tex. Fam. Code Chapter 262 may order that the child who is the subject of the hearing be placed in a secure agency foster home verified in accordance with Tex. Hum. Res. Code § 42.0531, if the court finds that:

•   The placement is in the best interest of the child; and

•   The child's physical health or safety is in danger because the child has been recruited, harbored, transported, provided, or obtained for forced labor or commercial sexual activity, including any child subjected to an act specified in Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03. Tex. Fam. Code § 262.011.