Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

D. Orders in Aid of Investigation

1. Interference

A person may not interfere with a DFPS investigation of a report of child abuse or neglect. Tex. Fam. Code § 261.303(a).

The court may also prohibit the removal of the child from the state during an investigation if the court:

•   Finds that DFPS has probable cause to conduct the investigation; and

•   Has reason to believe that the person may remove the child from the state. Tex. Fam. Code § 261.306(b).

Contumacious refusal to submit to orders in aid of investigation may be grounds for termination of parental rights in a subsequently filed Suit Affecting the Parent-Child Relationship (SAPCR). Tex. Fam. Code § 161.001(b)(1)(I).

2. Court Orders

If DFPS requests the information below, but is not allowed access, then the court having family law jurisdiction shall order:

•   Admission to the home, school, or place where a child may be for the interview, examination, and investigation if the court has good cause to believe the child is in imminent danger of aggravated circumstances or has probable cause to believe the admission is necessary to protect the child from abuse or neglect. Tex. Fam. Code § 261.303(b);

•   A child's physical, psychological, or psychiatric examination or the release of related medical records if the court has probable cause to believe the order is necessary to protect the child from abuse or neglect. Tex. Fam. Code § 261.303(c); or

•   A parent or caregiver's medical or mental examination and/or access to related records, for good cause shown. Tex. Fam. Code § 261.305(b).

A hearing for an order regarding interference with an investigation may not be ex parte unless the court has probable cause to believe there is no time, consistent with the physical health or safety of the child, for a full hearing. Tex. Fam. Code § 261.303(f). The court's order must include the court's findings regarding the sufficiency of evidence supporting the order. Tex. Fam. Code § 261.303(g).

If DFPS seeks an order to access to medical or mental health records for a parent or caregiver of a child, the court shall appoint an attorney at the hearing relating to the examination or release of their medical records, if the court determines that the parent or person is indigent. Tex. Fam. Code § 261.305(c). The parent or person responsible for the child's care is entitled to notice and hearing prior to such a court order. Tex. Fam. Code § 261.305(d).

Special Issue: Although not required by statute, some courts require an affidavit to support a motion for an order in aid of investigation. Courts might also consider requiring the making of a record, if DFPS requests an order in aid of investigation without an affidavit to support their request for the order.

Courts might consider the following when requested to issue an order in aid of investigation under Tex. Fam. Code § 261.303:

•   Jurisdiction is proper in the court because the child is located in the jurisdiction of the court or the court has continuing jurisdiction.

•   DFPS has filed an application seeking an order in aid of investigation and has shown good cause or probable cause for a court order because:

◦   DFPS cannot access the child;

◦   DFPS cannot obtain medical, psychiatric, or psychological records of the child;

◦   DFPS cannot obtain consent by the parent or caregiver of the child for a medical, psychological, or psychiatric examination; or

◦   the parent or caregiver refuses to cooperate with the investigation and refusal poses a risk to the child's safety.