Child abuse and/or neglect is a serious social problem. Texas devotes substantial public resources to the prevention and protection of children from abuse and neglect. The state also devotes substantial public resources to the prevention and protection of elderly person (aged 65 and over) from abuse, neglect, and exploitation. This article is focused on children.
The Child Protective Services (CPS) Division of the Department of Family and Protective Services (DFPS) is responsible for most of the programs to prevent and protect children from abuse and neglect. There are extensive provisions in the state statutes to prevent and protect children from abuse and/or neglect. This is a brief over-view.
Legal Representation: A parent or other conservator of a child who is under investigation for child abuse or neglect should consult with an attorney immediately. The parent or other conservator under investigation needs to cooperate with CPS. A parent’s rights may be terminated involuntarily (over their opposition) or severely restricted. The child may be removed from the parent’s home and placed in foster care. Alternatively, a member of the household may be order removed from the child’s residence if found to be a perpetrator of child abuse or neglect. Removal of the alleged perpetrator or removal of the child from the child’s residence may be done on an emergency basis prior notice and a hearing. All reported cases of child abuse or neglect are listed in a Central Registry. The parent or other conservator under investigation needs to see that (1) the investigators follow all statutes and regulations and (2) all substantive and procedural rights are honored by CPS and their attorneys and the court.
Abuse & Neglect: What exactly is abuse and neglect? The Legislature has defined the words. The words “abuse” and “neglect” have specific meanings defined by state statute. In general, “abuse” means some type of act or failure to act that results in: (1) mental or emotional injury, (2) physical injury, or (3) sexual conduct that is harmful to a child. In general, “neglect” means leaving a child in a situation where the child would be exposed to a substantial risk of physical or mental harm. These definitions apply to any “person responsible for a child’s care, custody, or welfare”.
Requirement to Report: State law requires any person who has “cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person …” to report immediately to an appropriate agency, such as law enforcement, CPS or a state agency that licenses a care facility. Certain licensed professionals are also required to make reports of child abuse and/or neglect that has occurred or may occur. The state maintains a Central Registry of such reports. The reports and the identity of the person making the report are confidential, unless a court requires disclosure in legal proceedings.
State Central Registry: DFPS is required to “…establish and maintain in Austin a central registry of reported cases of child abuse or neglect.”
Investigation of Reports and Protection Suits: DFPS or an agency designated by the court is required to investigate all reports of child abuse and/or neglect. A child may be removed from the possession any person having or entitled to possession of a child in situations where there is a “…danger to the physical health or safety of the child …”. Alternatively, a member of the household may be order removed from the child’s residence if found to be a perpetrator of child abuse or neglect. Removal of the alleged perpetrator or removal of the child from the child’s residence may be done on an emergency basis prior notice and a hearing.
In emergency situations, the agency may remove the child prior to filing any legal proceeding, but the agency must seek an emergency hearing the next working day. A court hearing with notice followed by entry of a court order is required before a child may be removed from its home, in the absence of an emergency. Under certain circumstances, the alleged perpetrator may be removed from the home, rather than removing the child from its home.
A child found to be abandoned without identification or means for identifying the child may be taken into the care, control, and custody of DFPS.
Child Under Conservatorship of DPFP: If a child has been removed and placed in the care of DFPS, then the DFPS must follow a procedure to develop a “Service Plan” for placement of the child. The Plan must contain specific contents, including a goal for placement of the child. The goal may be for the return of the child to the parent or parents or be placed with relatives or that the rights of the parents be terminated and the child be placed for adoption. Special provision may be made for special needs children.
Eventually, the DFPS must prepare a Permanency Plan for presentation to the court and the court, after receiving Progress Reports, must issue a Final Order. The court’s Final Order must be issued on or before the first Monday following the first anniversary of the date the DFPS took custody of the child under temporary orders, otherwise, the suit must be dismissed. The court may, in extraordinary circumstances, extend the deadline by 180 days.
Termination of the Parent-Child Relationship: A court may order a parent’s rights with regard to his/her child be terminated involuntarily (over their opposition). The court is first required to conduct a hearing and make findings based upon “clear and convincing evidence”. The list of required findings is long and will not be repeated here. Check with your attorney to find out if you are at risk for having your parental rights terminated.[i]
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