E. Conducting a Permanency Hearing After Final Order

At each Permanency Hearing After Final Order, the court shall:

•   Identify all persons and parties present at the hearing;

•   Review the efforts of DFPS or other agency in notifying persons entitled to notice under Tex. Fam. Code § 263.0021;

•   Make a finding as to whether DFPS is able to place the child with a relative or other designated caregiver and state the evidence that supports its finding either way. Tex. Fam. Code § 262.0022, Tex. Fam. Code § 263.002, and Tex. Fam. Code § 263.5031(3)(B); and

•   Review the permanency progress report to determine:

◦   the safety and well-being of the child and whether the child's needs, including any medical or special needs, are being adequately addressed;

◦   whether DFPS placed the child with a relative or other designated caregiver and the continuing necessity and appropriateness of the placement of the child, including with respect to a child who has been placed outside of this state, whether the placement continues to be in the best interest of the child;

◦   if the child is placed in institutional care, whether efforts have been made to ensure that the child is placed in the least restrictive setting consistent with the child's best interest and special needs;

Special Issue: Under Tex. Fam. Code § 263.001(3-a), “least restrictive setting” means a placement that, in comparison to all other available placements, is the most family-like setting. For children older than six, placing the child in a cottage home, even though part of a general residential operation and considered congregate care under federal law, is permissible and considered under Tex. Fam. Code § 263.001(c) to be a “least restrictive setting” if a suitable relative or other designated caregiver is not available as a placement for the child. Under Tex. Fam. Code § 263.001(d), for children younger than six, the only acceptable “least restrictive setting” is a foster home. A cottage home may be considered the least restrictive setting for a child younger than six only if DFPS determines it is in the best interest of the child to be placed in the cottage home.

◦   the appropriateness of the primary and alternative permanency goals for the child, whether DFPS has made reasonable efforts to finalize the permanency plan, including the concurrent permanency goals, in effect for the child, and whether:

▪   DFPS has exercised due diligence in attempting to place the child for adoption if parental rights to the child have been terminated and the child is eligible for adoption; or

▪   another permanent placement, including appointing a relative as permanent managing conservator or returning the child to a parent, is appropriate for the child;

◦   for a child whose permanency goal is another planned permanent living arrangement:

▪   the desired permanency outcome for the child, by asking the child;

▪   whether, as of the date of the hearing, another planned permanent living arrangement is the best permanency plan for the child, and, if so, provide compelling reasons why it continues to not be in the best interest of the child to:

― return home;

― be placed for adoption;

― be placed with a legal guardian; or

― be placed with a fit and willing relative;

▪   whether DFPS has:

― conducted an independent living skills (ILS) assessment under Tex. Fam. Code § 264.121(a-3);

― addressed the goals identified in the child's permanency plan, including the child's housing plan, and the results of the ILS assessment;

― provided a youth 16 years and older with the documents and information listed in Tex. Fam. Code § 264.121(e); and

― provided a youth who is 18 years or has had the disabilities of minority removed, the documents and information listed in Tex. Fam. Code § 264.121(e-1). Tex. Fam. Code § 263.306(a-1)(5);

◦   if the child is 14 years of age or older, whether services that are needed to assist the child in transitioning from substitute care to independent living are available in the child's community;

◦   whether the child is receiving appropriate medical care and has been provided the opportunity, in a developmentally appropriate manner, to express the child's opinion on any medical care provided;

◦   for a child receiving psychotropic medication, whether the child:

▪   has been provided appropriate non-pharmacological interventions, therapies, or strategies to meet the child's needs; or

▪   has been seen by the prescribing physician, physician assistant, or advanced practice nurse at least once every 90 days;

◦   whether an education decision-maker for the child has been identified, the child's education needs and goals have been identified and addressed, and there are major changes in the child's school performance or there have been serious disciplinary events;

◦   for a child for whom DFPS has been named managing conservator in a final order that does not include termination of parental rights, whether to order DFPS to provide services to a parent for not more than six months after the date of the Permanency Hearing if:

▪   the child has not been placed with a relative or other individual, including a foster parent, who is seeking permanent managing conservatorship of the child; and

▪   the court determines that further efforts at reunification with a parent are:

― in the best interest of the child; and

― likely to result in the child's safe return to the child's parent; and

◦   whether DFPS has identified a family or other caring adult who made a permanent commitment to the child. Tex. Fam. Code § 263.5031.

◦   review DFPS efforts to ensure the child has regular, ongoing opportunities to engage in age-appropriate normalcy activities, including activities not listed in the child's service plan. Tex. Fam. Code § 263.5031(b).

•   The court shall inquire from all parties whether the child has had the opportunity to provide information regarding potential caregivers and whether individuals identified by the child are listed on the proposed Child Placement Resources Form. Tex. Fam. Code § 263.5031(4)(B).

•   If the child has been placed with a relative or designated caregiver, the court shall inform the individual serving as a placement for the child of the ability to become a licensed foster parent and apply for a Permanency Care Assistance agreement. Tex. Fam. Code § 263.5031(3).

Additionally, Tex. Fam. Code § 263.503(c) requires that, in addition to the requirements of Tex. Fam. Code § 263.5031, at each Permanency Hearing After a Final Order the court shall review DFPS efforts to ensure that the child has regular, ongoing opportunities to engage in age-appropriate normalcy activities as defined by Tex. Fam. Code § 264.001; this may include activities not listed in the child's service plan. Tex. Fam. Code § 263.503.