A growing awareness of the unique legal, social, and psychological issues confronting abused and neglected children and their families in recent decades has produced an army of judges, lawyers, child advocates, and social workers better equipped than ever to handle the unique landscape of child protective services (CPS) litigation. For attorneys new to this area of practice, however, the field’s increasing complexity makes getting up to speed a daunting task.
Any attorney who has been in the trenches knows why the learning curve is so steep: a maze of constantly changing federal and state laws, an alphabet soup of acronyms, a variable cast of parties in every lawsuit, and myriad special laws governing everything from paternity, to Native American children, to interstate and international placements. It isn’t possible to produce an exhaustive compilation of what an attorney representing the Department of Family and Protective Services (DFPS) needs to know in a brief article, but what follows is intended as a roadmap for this important but often disorienting legal terrain, with citations and resources for further research. Although this is only a fraction of what a successful practitioner needs to know, I hope that a close look at the infrastructure underlying this field of practice will make it easier to build the necessary expertise.
In 1997 Congress enacted a fundamental truism of child welfare litigation into law: Child safety is paramount in every decision at every juncture.1 Although it almost seems unnecessary to say out loud, the reality of child welfare litigation—the frenetic pace, heavy caseloads, high stakes and limited resources—makes the mantra of child safety a useful touchstone for practitioners.
Another pillar of child welfare policy is the concept that every child needs the most permanent living arrangement possible, as quickly as possible. Ideally, permanency means services that prevent a child from being removed from her home or allow a child to be returned home as quickly as possible. When a child cannot be returned home, however, her need for permanency requires timely decisions to afford her a safe and stable placement. After too many years of children languishing in foster care, both the Texas Legislature and U.S. Congress enacted statutory mandates that compel timely progress and review of cases and, most importantly, impose strict time limits for reaching a final determination in a child welfare case.2
Another significant concept, reflected in both policy and law, is a renewed emphasis on the role of the extended family and friends in resolving abuse and neglect issues.3 This philosophy takes many forms, but the Family Group Conferencing model is a prime example.4 In this model the first effort to aid a family in crisis is to provide a forum for the family to craft its own solution. A facilitator convenes relatives, friends and other members of the community important to the family, but the focus is on encouraging the family to draw on its own strengths and create a uniquely appropriate plan to address child safety.
With the increased focus on families, greater emphasis is also placed on an aggressive search to find any and all possible relatives or family friends who are potential caretakers when it’s determined that a child can no longer be safe in her home. To this end, DFPS provides a parent with a Child Placement Resources Form at the time of removal and must evaluate each person on the form and complete a home study of the most appropriate substitute caregiver before the adversary hearing.5
The rhythm and progress of a child protection lawsuit is dictated by federal and state laws that require a series of hearings that begin when a child is removed from a family’s home. The following are broad descriptions of the purpose and timing of these standard hearings. For details about the statutory requirements, issues and procedural prerequisites, consult the resources cited below. In addition, the Office of General Counsel for DFPS anticipates releasing the Practice Guide for DFPS Attorneys in the fall of 2008. Attorneys who represent the agency also currently have access to HOTDOCS, a software program with standard pleadings for DFPS litigation.6
Emergency removal. If a child has been removed with no prior court order, the agency must appear in court no later than the next business day (usually this is an ex parte hearing/order) and provide sufficient evidence of “a continuing danger to the physical health or safety of the child if returned to the home or evidence that the child has been sexually abused and is at substantial risk of future sexual abuse.”7
Alternatively, DFPS may seek an ex parte order prior to a removal and in that instance must provide sufficient evidence of “either an immediate danger to the physical health or safety of the child, or that the child has been a victim of neglect or sexual abuse.”8
In addition, in either of these circumstances the agency must also provide sufficient evidence:
• that there is not sufficient time, consistent with the child’s physical health or safety, to hold an adversary hearing;
• that it would be contrary to the child’s welfare to remain in the home; and
• that reasonable efforts were made to prevent or eliminate the need for removal.9
Non-emergency hearing. If there is no urgent need for removal but the child’s safety is at risk if left in the parent’s care, DFPS can seek a court order authorizing removal following a noticed hearing. This type of order requires sufficient evidence to prove:
• that it would be contrary to the child’s welfare to remain in the home; and
• that reasonable efforts were made to prevent or eliminate the need for removal.10
In every removal, the original petition in the Suit Affecting the Parent Child Relationship (SAPCR) is verified by the caseworker’s supporting affidavit, which must detail specific facts about household conditions, medical findings, allegations of sexual abuse or physical abuse, or other circumstances that make removal of a child necessary, as well as the efforts made to obviate the need for a removal.
Adversary hearing. Within 14 days after DFPS takes a child into custody in an ex parte proceeding, the court must revisit the issue of removal and either enter temporary orders or return the child to the family.11 At this hearing, if the court appoints DFPS as the child’s temporary managing conservator, the court must enter temporary orders and find:
• danger to the child’s physical health or safety and that it is contrary to the child’s welfare to remain in the home;
• the urgent need for protection required immediate removal; and
• that despite reasonable efforts to prevent or eliminate the need for removal and to return the child home, there is a substantial risk of continuing danger to the child in the home.12
At this juncture the agency attorney also typically seeks any necessary orders for visitation, child support, paternity testing, psychological testing, drug assessment or testing, physical examinations, discovery, or other orders needed to protect the child, facilitate the child’s return, or find optimum placement for a child.
Status hearing. No later than 60 days after a temporary order is entered, a status hearing must be held.13 Its focus is:
• the contents of the service plan;
• designation of the person authorized to give medical consent for the child;
• the status of diligent search efforts for any missing parents; and
• a warning to parents that unless the parent can offer the child a safe environment, termination of parental rights is an option.14
Permanency hearings. The first permanency hearing must be held no later than 180 days after DFPS is named as temporary conservator.15 Notice is required and all parties must be given a copy of the permanency plan at least 10 days prior to the hearing.16 At the hearing, the court must:
• thoroughly assess all facets of the case;
• return the child to the home if it is safe to do so;
• enter necessary orders to ensure progress toward permanency; and
• set a dismissal date.17
A subsequent permanency hearing must be held within 120 days of the last permanency hearing.18
Final hearing. The driving force that dictates timely resolution of a child welfare case is the requirement that no later than one year after DFPS is named conservator (or at most an additional 180 days later if the court finds that extraordinary circumstances necessitate an extension), the court must either enter a final order or dismiss the lawsuit.19 DFPS may seek termination of parental rights and appointment of DFPS or another caretaker as permanent managing conservator. Although it is sometimes necessary, naming DFPS or another caretaker as a child’s managing conservator without termination of the child’s parental rights is only appropriate if no other, more permanent option is available. Without question, this stage of the litigation requires the most careful preparation, adherence to procedural requirements, and close coordination between DFPS staff and attorneys representing the agency. Evidence of DFPS’ efforts to locate a missing parent, a parent’s compliance with the service plan, and the child’s adoptability may all be crucial at this juncture. If termination of parental rights is requested, there must be clear and convincing evidence of at least one statutory ground for termination of parental rights and that termination is in the child’s best interests.20
If the final order names DFPS as managing conservator, the court must review the child’s placement at least every six months until the child ages out of foster care.21 DFPS must submit a placement review report addressing all aspects of the child’s status at least 10 days in advance, and the court must make findings as to the appropriateness of the placement, the efforts made to meet the child’s needs, and any additional services the child needs.22
In child protection litigation, sometimes half the battle is figuring out who is a party to the action. If a child is born to a married woman, her husband is the presumed father and must be named in a suit seeking to restrict or terminate parental rights.23 Similarly, if a man has lived continuously with a child during her first two years of life and has held himself out to be the child’s father, he may also qualify as a presumed father.24 A presumption of paternity can be rebutted only by an adjudication of paternity or a valid denial of paternity filed by a presumed father with a valid acknowledgement by another person.25
If the mother is not married when a child is born (and wasn’t married within 301 days before birth) and no man has been adjudicated to be the father, the legal ramifications of alleged father status become important. Texas maintains a paternity registry, which allows an alleged father to protect his rights by registering; if he fails to do so, he allows a child to be legally freed for adoption without service of process.26 The process of checking the registry and terminating parental rights of a man who fails to register is not difficult, but getting accurate information as to potential fathers, obtaining paternity testing where possible, and handling new information that may not surface until the eve of a final hearing can be tricky. The best strategy is to make every effort to resolve the paternity question as early in the litigation as possible to streamline the litigation and make the best use of limited resources.27
When parental rights are at stake, due process requires that a parent be served with the lawsuit or, at a minimum, the agency must exercise due diligence in an effort to locate a missing parent before a court can authorize substitute service, usually by publication. Generally, DFPS pleads for termination of parental rights in the alternative in the initial petition. This strategy avoids the necessity of serving parties again when and if the decision is made to pursue termination of parental rights. If a default judgment is taken, compliance with the Service-members Civil Relief Act requires proof that a parent is not an active member of the military.28
Being familiar with the language always makes navigating new terrain much easier. A few key terms include:
Adam Walsh: The federal Adam Walsh Child Protection and Safety Act of 2006, which requires (among other things) that child welfare agencies conduct fingerprint-based FBI checks on all prospective foster and adoptive homes and, for federally funded placements, imposes either a permanent or a five-year bar on placements if a caretaker has a conviction for specified crimes.29
ASFA: The federal Adoption & Safe Families Act of 1997 which amended Title IV-E of the Social Security Act.30
Baby Moses: The tag given to cases involving infants left at a designated facility, which are not treated as abandonment, to promote safe delivery of infants who might otherwise be left in trash bins or similar perilous circumstances. Special procedures regarding confidentiality, notice, and termination of parental rights apply in these cases.31
CAC: Child Advocacy Center, a multi-disciplinary center designed to minimize the trauma on a child by limiting the number of interviews and to promote collaboration between medical, law enforcement, social work, legal, and other child welfare professionals.32
CAPTA: The federal Child Abuse Protection and Treatment Act, most recently reauthorized and amended by the Keeping Children and Families Safe Act of 2003.33
CASA: Court Appointed Special Advocates, volunteer guardians ad litem appointed to advocate for a child in court.34
CCEJ: Court of Continuing and Exclusive Jurisdiction. After the adversary hearing, if another court is the CCEJ as result of a custody case or another CPS suit, the court must transfer the suit to the CCEJ or, if mandatory transfer grounds exist, order the transfer of the suit from the CCEJ, or order the transfer of the case to the court having venue of the suit.35
FBSS: Family Based Safety Services. These are protective services provided to a family before a child is removed from the home. These services are designed to avoid a removal and reduce the likelihood that a child will be abused or neglected.36
IV-D: Title IV-D of the Social Security Act creates the state’s child support enforcement program. Texas receives a substantial federal subsidy for this program. The Child Support Division of the Office of Attorney General (also known as the IV-D state agency) is responsible for the establishment and enforcement of child support.
IV-E: Title IV-E of the Social Security Act, the source of federal foster care and adoption assistance funding and the accompanying restrictions and requirements.37
Family Reunification Services: These are protective services provided after removal to support a family and the child during the child’s transition from living in substitute care to living back in the home.38
Kinship Care: Caretaking by relatives or “fictive kin,” friends of the family that function like relatives.
Order to Participate in Services: A court order to compel a parent or caretaker to participate in services designed to avoid the need to remove a child.39
SWI: Statewide Intake, a centralized DFPS office located in Austin where members of the public or professionals can report child abuse via the telephone or the Internet.