G. Filing Suit Prior to Taking Possession of Child

1. When it is Not Necessary to Remove a Child Prior to Notice and Hearing

An original suit filed by a governmental entity that requests to take possession of a child after notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence and caution that:

•   There is a continuing danger to the physical health or safety of the child caused by an act or failure to act of the person entitled to possession of the child and that allowing the child to remain 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, have been made to prevent or eliminate the need to remove the child from the child’s home. Tex. Fam. Code § 262.113.

New Tex. Fam. Code § 262.1131 authorizes the court to render a Temporary Restraining Order as provided by Tex. Fam. Code § 105.001, when DFPS files suit under Tex. Fam. Code § 262.113.

Section 262.201 was amended to impose a deadline of 30 days for a court to hear a non-emergency petition filed pursuant to Tex. Fam. Code § 262.113. Tex. Fam. Code § 262.205, which governed the Show Cause Hearing conducted on petitions filed pursuant to Section 262.113, was repealed. All hearings held subsequent to emergency and non-emergency removal petitions are combined under Section 262.201 of the Texas Family Code. Tex. Fam. Code § 262.201.