WIXLIB

Texas Child Protection LawBench BookNovember 2018

ACKNOWLEDGMENTSThis revised edition of the Texas Child Protection Law Bench Book (Bench Book) includesadditions of and revisions to important topics such as Community Based Foster Care, CaregiverAssistance Agreements, new Bureau of Indian Affairs Guidelines regarding implementation ofthe Indian Child Welfare Act, and new federal laws affecting educational outcomes of childrenin the child welfare system.This project is supported by the Court Improvement Program grants, awarded by the UnitedStates Department of Health and Human Services Administration for Children and Families.The information in this publication has been developed by the Bench Book Advisory Committeeand the staff of the Supreme Court of Texas Permanent Judicial Commission for Children, Youthand Families (Children’s Commission). Any resource materials or other written contributionsprovided by the Children's Commission should not be read as an advisory issued by theSupreme Court of Texas or any other court. Contributions to this Bench Book are not rulings onspecific cases or legal issues, but are solely intended to address the improvement of the law,the legal system, and the administration of justice related to child protection cases.Children’s Commission Staff:Tina Amberboy, Executive DirectorJessica Arguijo, Communications ManagerJamie Bernstein, Assistant DirectorJocelyn Fowler, Staff AttorneyTiffany Edwards, Executive AssistantMonica Mahoney, Program SpecialistDylan Moench, Staff AttorneyPatrick Passmore, Grant AdministratorMilbrey Raney, Training DirectorAndrea Vicencio, Executive AssistantThe Honorable Dean Rucker (ret.), Jurist in Residence2Texas Child Protection Law Bench Book

TABLE OF CONTENTSACKNOWLEDGMENTS . 2TABLE OF CONTENTS . 3INVESTIGATIONS .12Legal Overview of Investigations . 12A. Initiation of Investigations . 12B. Making a Report . 16C. Fourth Amendment Requirements in an Investigation . 17D. Orders in Aid of Investigation. 19ALTERNATIVES TO REMOVAL .21A. Order Seeking Removal of Alleged Perpetrator of Physical or Sexual Abuse . 21B. Order for Required Participation . 22C. Protective Orders. 23D. Relinquishing Custody of Child to Obtain Certain Services . 28E. Child Safety Check Alert List . 28BEST INTEREST .32A. Factors in Determining Best Interest of Children . 32B. Hearings Requiring a Best Interest Determination . 32C. Court Decisions Requiring a Best Interest Determination . 33D. DFPS Decisions That Must Consider Best Interest . 33E. Case Law on Best Interest When Seeking Termination of Parental Rights. 34REMOVAL .36Legal Overview of Removal of Children. 36A. Removal or Conservatorship of a Child . 36B. Jurisdiction, Venue, and Transfer . 37C. Emergency Removal With a Court Order . 39D. Emergency Removal Without a Court Order . 42E. Expedited Hearing and Appeal . 45F. After Ex Parte Order Authorizing Removal . 45G. Filing Suit Prior to Taking Possession of Child . 55H. Service of Citation . 56I. Evaluation of Identified Relatives and Other Designated Individuals . 583Texas Child Protection Law Bench Book

J. Placement . 59K. Visitation Schedule . 60L. Placement When Child Victim of Human Trafficking . 61BURDEN OF PROOF .62A. Sufficient Evidence to Satisfy a Person of Ordinary Prudence and Caution . 62B. Preponderance of the Evidence . 62C. Clear and Convincing. 62D. Beyond a Reasonable Doubt . 63ADVERSARY HEARING.64Legal Overview of Adversary Hearing. 64A. Service of Citation . 65B. Notice . 65C. Hearing After Emergency Removal With or Without a Court Order . 68D. Hearing When Child Not in Possession of DFPS . 70E. If Court Does Not Remove the Child or Continue DFPS Conservatorship . 72F. Mandatory Appointment of Attorney for Parent . 72G. Transfer . 74H. Placement with Relatives or Designated Caregiver . 76I. Placement When Child Victim of Human Trafficking . 78J. Aggravated Circumstances. 78K. Decisions Regarding Education Required at Adversary Hearing. 79STATUS HEARING .81Legal Overview of Status Hearing . 81A. Status Hearing . 81B. Mandatory Findings . 83C. Court Shall Advise/Warn Parents . 84D. Court Shall Review Service Plan . 85E. Court Shall Review Visitation Plan . 87F. Child Placement Resources Form . 89G. Permanency Planning Meetings. 89H. Assessments . 89I. Inquiry Regarding Child’s Native American Heritage . 90PERMANENCY HEARING BEFORE FINAL ORDER .914Texas Child Protection Law Bench Book

Legal Overview of Permanency Hearing Before Final Order . 91A. Permanency Hearing Before Final Order . 91B. Hearing Notice is Mandatory. 92C. Permanency Plan for Child is Required . 93D. Permanency Progress Report is Required; Contents . 94E. Procedural and Due Process Issues . 95F. Mandatory Actions, Findings, and Considerations . 95G. Mandatory Child-Specific Considerations . 98H. Best Interest . 101I. Medical Consent . 103J. Children who are Missing or Victims of Sex Trafficking . 104K. Notice of Significant Events . 105FINAL HEARING . 108Legal Overview of Final Hearing . 108A. Case Must Be Dismissed Within One Year . 108B. Court May Extend Dismissal Date if Extraordinary Circumstances . 108C. Monitored Return. 110D. Final Hearing. 112PERMANENCY HEARING AFTER FINAL ORDER . 126Legal Overview of Permanency Hearing After Final Order . 126A. When Permanency Hearing After Final Order is Conducted. 127B. Notice of the Permanency Hearing After Final Order . 127C. The Child Shall Attend the Permanency Hearing After Final Order . 128D. Permanency Progress Report After Final Order . 128E. Conducting a Permanency Hearing After Final Order . 129F. Court Orders Related to Permanent Managing Conservatorship . 132G. Foster Youth Bill of Rights and Ombudsman’s Office . 133H. Transitional Services . 134I. Extended Jurisdiction for Youth Aging Out of Foster Care . 136APPEALS . 140Legal Overview of Appeals . 140A. Specific Grounds Must Be Stated In Trial Court Judgment . 141B. Parent Deemed Indigent on Appeal . 1415Texas Child Protection Law Bench Book

C. Attorney Ad Litem Required to Remain on Case . 141D. Trial Court Clerk Has Specific, Time-sensitive Duties . 141E. Application of Tex. Civ. Prac. & Rem. Code § 13.003 Prohibited. 141F. Effective Assistance of Counsel . 141G. Order or Judgment Termination Parent-Child Relationship May Not Be Suspended During Pendency ofAppeal . 142H. Notice of Appeal and Appellant Duties . 142I. Case Law Update . 142ADOPTION . 147Legal Overview of Adoption . 147A. Petition for Adoption. 147B. Documentation Required . 148C. Hearing . 149COMMUNITY BASED FOSTER CARE. 151A. What is Community Based Foster Care? . 151B. The Single Source Continuum Contractor or SSCC . 151C. The Effect of CBC on Courts and Court Process . 151D. Monitoring of the SSCC by DFPS . 152CONTEMPT . 153A. Introduction. 153B. Direct Contempt . 153C. Indirect Contempt . 154D. Remedies for Contempt . 154E. Civil / Coercive . 154F. Criminal / Punitive . 155G. Burden of Proof . 155H. Jury . 155I. Authority . 156J. Orders of Contempt . 156DISPROPORTIONALITY . 158A. In Texas . 158B. The Elimination of Disproportionality and Disparities . 159C. What You Can Do About Disproportionality? . 159EDUCATION . 1616Texas Child Protection Law Bench Book

A. Education Data . 161B. School Stability . 161C. Roles and Responsibilities Related to Education . 165D. School Transitions . 171E. Attendance and School Experience . 174F. Special Education and Section 504 . 177G. Eligibility for Special Programs . 180H. Post-Secondary Opportunities . 182I. Resources . 185Judicial Checklists . 187Websites . 188EVIDENCE IN CPS CASES. 189A. Applicability of Rules of Evidence . 189B. Facilitating Child Testimony at Trial . 189C. Video Testimony of Certain Professionals . 191D. Allegations of Abuse and Neglect and Attorney-Client Privilege . 192E. Testimony of Children’s Ad Litems . 192F. Prohibition of Certain Testimony Not Applicable in DFPS Cases . 193G. Resources . 193EXTENDING FOSTER CARE FOR TRANSITIONING YOUTH . 194A. Extended Jurisdiction . 194B. Trial Independence . 194C. Supervised Independent Living . 194D. Eligibility Requirements for SIL?. 195E. SIL Settings . 195F. Requesting a SIL Placement . 196G. Resources . 196FAMILY VISITATION . 198A. Court Duties . 198B. DFPS Best Practice Guide . 198C. Stages of Supervision . 200D. Parent Information and Observation Form . 203HEALTH CARE FOR TEXAS CHILDREN IN FOSTER CARE: STAR HEALTH . 2067Texas Child Protection Law Bench Book

A. Unique Features of STAR Health . 207B. Physical Healthcare Benefits Provided by STAR Health . 207C. Behavioral Health Benefits Provided by STAR Health . 208D. Transitioning Youth . 209E. Child and Family Assessments . 210F. Medical Consent . 212G. Admission of a Child in DFPS Custody to an Inpatient Mental Health Facility. 214H. Monitoring Psychotropic Medications . 215I. End of Life Medical Decisions . 215J. Health Passport . 216K. Court Orders for Medical Services. 217L. References . 217M. Who to Contact with Health Care Questions .

Texas Child Protection Law Bench Book . 2 . ACKNOWLEDGMENTS . This revised edition of the Texas ChildProtection Law Bench Book (Bench Book) includes additions of and revisions to important topics such as Community Based Foster Care, Caregiver Assistance Agreements, new Bureau of Indian Affairs Guidelines regarding implementation of