A. Initiation of an Investigation
Initiation of an investigation requires:
1. Abuse, Neglect, Exploitation or the Risk of Abuse or Neglect
"Abuse" includes the following acts or omissions by a person:
• Mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning;
• Causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning;
• Physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;
• Failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;
• Sexual conduct harmful to a child's mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of a young child or children under Tex. Penal Code § 21.02, indecency with a child under Tex. Penal Code § 21.11, sexual assault under Tex. Penal Code § 22.011, or aggravated sexual assault under Tex. Penal Code § 22.021;
• Failure to make a reasonable effort to prevent sexual conduct harmful to a child;
• Compelling or encouraging the child to engage in sexual conduct as defined by Tex. Penal Code § 43.01, including compelling or encouraging the child in a manner that constitutes an offense of trafficking of persons under Tex. Penal Code § 20A.02(a)(7) or (a)(8), solicitation of prostitution under Tex. Penal Code § 43.021, or compelling prostitution under Tex. Penal Code § 43.05(a)(2);
• Causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Tex. Penal Code § 43.21 or pornographic;
• The current use by a person of a controlled substance as defined by Tex. Health & Safety Code Chapter 481, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child;
• Causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Tex. Health & Safety Code Chapter 481;
• Causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by Tex. Penal Code § 43.25;
• Knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked in a manner punishable as an offense under Tex. Penal Code § 20A.02(a)(5), (a)(6), (a)(7) or (a)(8), or the failure to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under any of those sections; or
• Forcing or coercing a child to enter into a marriage. Tex. Fam. Code § 261.001(1).
"Neglect" means an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person's blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety.
"Neglect" includes:
• The leaving of a child in a situation where the child would be exposed to an immediate danger of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;
• The following acts or omissions by a person:
◦ placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or an immediate danger of immediate harm to the child;
◦ failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting an immediate danger of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child;
◦ the failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services have been offered and refused;
◦ placing a child in or failing to remove the child from a situation in which the child would be exposed to an immediate danger of sexual conduct harmful to the child; or
◦ placing a child in or failing to remove the child from a situation in which the child would be exposed to acts or omissions that constitute abuse under Tex. Fam. Code § 261.001(1)(E), (1)(F), (1)(G), (1)(H), or (1)(K) committed against another child;
• The failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away; or
• A negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy. Tex. Fam. Code § 261.001(4).
Neglect does not include:
• The refusal by a person responsible for a child's care, custody, or welfare to permit the child to remain in or return to the child's home resulting in the placement of the child in the conservatorship of DFPS if:
◦ the child has a severe emotional disturbance;
◦ the person's refusal is based solely on the person's inability to obtain mental health services necessary to protect the safety and well-being of the child; and
◦ the person has exhausted all reasonable means available to the person to obtain the mental health services described by Tex. Fam. Code § 261.001(4)(B)(i)(b). Tex. Fam. Code § 261.001(4)(B)(i);
• Allowing the child to engage in independent activities that are appropriate and typical for the child's level of maturity, physical condition, developmental abilities, or culture. Tex. Fam. Code § 261.001(4)(B)(ii).
• Seeking a second opinion for a child's medical care or transferring a child's medical care to a new provider or facility. Tex. Fam. Code § 261.001(4)(B)(ii).
The DFPS Commissioner shall adopt rules to prohibit DFPS from making a finding of abuse or neglect against a person in a case in which DFPS is named managing conservator of a child who has a severe emotional disturbance only because the child's family is unable to obtain mental health services for the child. Tex. Fam. Code § 261.002(b)(1).
The refusal of a parent, guardian, or managing or possessory conservator of a child to administer or consent to the administration of a psychotropic medication to the child, or to consent to any other psychiatric or psychological treatment of the child, does not by itself constitute neglect of the child unless the refusal to consent:
• Presents a substantial risk of death, disfigurement, or bodily injury to the child; or
• Has resulted in an observable and material impairment to the growth, development, or functioning of the child. Tex. Fam. Code § 261.111(b).
“Exploitation” includes:
• The illegal or improper use of a child or the child's resources for monetary or personal benefit or profit by an employee, volunteer, or other individual working under the auspices of a facility or program as further described by rule or policy. Tex. Fam. Code § 261.001(3).
2. By a Person Responsible for a Child's Care, Custody, or Welfare
• A parent, guardian, managing or possessory conservator, or foster parent of the child;
• A member of the child's family or household as defined by Tex. Fam. Code Chapter 71;
• A person with whom the child's parent cohabits;
• School personnel or a volunteer at the child's school; or
• Personnel or a volunteer at a public or private child-care facility that provides services for the child or at a public or private residential facility where the child resides; or
• An employee, volunteer, or other person working under the supervision of a licensed or unlicensed child-care facility, including a family home, residential child-care facility, employer-based day-care facility, or shelter day-care facility, as those terms are defined in Tex. Hum. Res. Code Chapter 42. Tex. Fam. Code § 261.001(5).