D. Emergency Removal Without a Court Order

1. Taking Possession Without a Court Order

If there is no time to obtain a temporary order, temporary restraining order or attachment under Tex. Fam. Code § 262.102(a) before taking possession of the child consistent with the health and safety of that child, an authorized representative of DFPS, a law enforcement officer, or a juvenile probation officer may take possession of a child without a court order under the following conditions only:

•   On personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child;

•   On information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe there is an immediate danger to the physical health or safety of a child;

•   On personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse or of trafficking under Tex. Penal Code§ 20A.02 or Tex. Penal Code § 20A.03;

•   On information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse or of trafficking under Tex. Penal Code§ 20A.02 or Tex. Penal Code § 20A.03;

•   On information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the parent or person who has possession of the child is currently using a controlled substance as defined by Tex. Health & Safety Code Chapter 481 and the use constitutes an immediate danger to the physical health or safety of the child. Tex. Fam. Code § 262.104(a); or

•   On personal knowledge or information furnished by another, that has been corroborated by personal knowledge, that would lead a person of ordinary prudence and caution to believe that the parent or person who has possession of the child has permitted the child to remain on premises used for the manufacture of methamphetamine. Tex. Fam. Code § 262.104(b).

A petition filed after taking possession of a child in an emergency must be supported by an affidavit that comports with the grounds stated above. The affidavit must also state that based on the affiant’s personal knowledge, there was no time, consistent with the child’s health and safety, for a full adversary hearing under Subchapter C, that continuation in the home would be contrary to the child’s welfare, and reasonable efforts were made to prevent or eliminate the need for removal of the child. Tex. Fam. Code § 262.105.

Special Issue: The statute appears to discourage emergency removal if prior notice and hearing is feasible without endangering the child. The exact nature of the emergency is determined by the DFPS caseworker or officer at the scene. According to the CPS Handbook, a caseworker should consider emergency removal only if other options for protecting the child are ruled out. Please see the CPS Handbook § 5412 located at https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_5400.asp.

2. Initial Hearing Requirement After Removal

If a child has been taken into possession without a court order by a governmental entity, the court in which a suit has been filed shall hold an initial hearing on or before the first business day after the date the child is taken into possession. Tex. Fam. Code § 262.106. The court shall render orders that are necessary to protect the physical health and safety of the child. Tex. Fam. Code § 262.106(a).

If the court is unavailable for a hearing on the first business day, then, and only in that event, the hearing shall be held no later than the first business day after the court becomes available, provided that the hearing is held no later than the third business day after the child is taken into possession. Tex. Fam. Code § 262.106(a).

For the purpose of determining the first business day after the date the child is taken into possession, the child is considered to have been taken into possession by DFPS on the expiration of the five-day period permitted pursuant to Tex. Fam. Code § 262.007(c) or Tex. Fam. Code § 262.110(b). Tex. Fam. Code § 262.106(d).

The initial hearing may be ex parte (without notice to the parents) and proof may be by sworn petition or affidavit if a full Adversary Hearing is not practicable. Tex. Fam. Code § 262.106(b).

If the initial hearing is not held within the time required, the child shall be returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child. Tex. Fam. Code § 262.106(c).

3. Standard for Decision at Initial Hearing After Taking Possession

The court shall order the return of the child at the initial hearing regarding a child taken in possession without a court order by a governmental entity, unless the court is satisfied that

•   The evidence shows that one of the following circumstances exists:

◦   There is a continuing danger to the physical health or safety of the child if the child is returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child;

◦   The child has been the victim of sexual abuse or of trafficking under Tex. Penal Code§ 20A.02 or Tex. Penal Code § 20A.03 on one or more occasions and that there is a substantial risk that the child will be the victim of sexual abuse or of trafficking in the future;

◦   The parent or person who has possession of the child is currently using a controlled substance as defined by Chapter 481, Health and Safety Code, and the use constitutes an immediate danger to the physical health or safety of the child; or

◦   The parent or person who has possession of the child has permitted the child to remain on premises used for the manufacture of methamphetamine;

•   Continuation of the child in the home would be contrary to the child’s welfare; and

•   Reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child. Tex. Fam. Code § 262.107(a).

In determining whether there is a continuing danger to the physical health or safety of a child, the court may consider whether the household to which the child would be returned includes a person who has:

•   Abused or neglected another child in a manner that caused serious injury to or the death of the other child; or

•   Sexually abused another child. Tex. Fam. Code § 262.107(b).

4. Taking Possession of Child in Emergency With Intent to Return Home

An authorized representative of DFPS, a law enforcement officer, or a juvenile probation officer may take temporary possession of a child without a court order on discovery of a child in a situation of danger to the child’s physical health or safety when the sole purpose is to deliver the child without unnecessary delay to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child. Tex. Fam. Code § 262.110(a).

Until a parent or other person entitled to possession of the child takes possession of the child, DFPS may retain possession of the child without a court order for not more than five days. On the expiration of the fifth day, if a parent or other person entitled to possession does not take possession of the child, DFPS shall take action under Tex. Fam. Code Chapter 262 as if DFPS took possession under Tex. Fam. Code § 262.104. Tex. Fam. Code § 262.110(b).