D. DFPS Response to Substance Use Disorders

The Child Abuse Prevention and Treatment Act (CAPTA, P.L. 93-247) was originally enacted in 1974, was last reauthorized in 2010, and amended most recently in 2019; additionally, certain provisions were amended by the Comprehensive Addiction and Recovery Act (CARA) of 2016 and the Victims of Child Abuse Act Reauthorization Act of 2018 (P.L. 115-424).[134]

Under these federal laws, states are required to have plans of safe care for infants born and identified as being affected by substance use or withdrawal symptoms of both legal and illegal substances. The plans of safe care are required to “ensure the safety and well-being of such infant following [the infant's] release from the care of health care providers” to be achieved through “addressing the health and substance use disorder treatment needs of the infant and affected family or caregiver.” 42 U.S.C.S. § 5106a(b)(1)-(2).

To avoid confusion, DFPS does not utilize the unique federal term “plan of safe care” as set forth in CARA, as there are a number of DFPS tools and policies that reference “plans.” Statewide Intake protocols, safety and risk assessment tools, and the service planning process used in different stages of service, collectively mean that the state meets the requirements under the CARA plans of safe care.

Examples of types of plans that do not include removal include: use of Parental Child Safety Placements (PCSP) to assure safety as the parent initiates or becomes engaged in services; use of residential substance use disorder treatment programs that allow a mother (or father in a few programs) to live in a treatment setting with the child, when appropriate; use of Medication-Assisted Treatment in combination with behavioral therapies; and the guidance of specialized drug courts in some areas. While access to treatment can be challenging, families referred by DFPS are considered a state priority population for state-funded substance use intervention and treatment services. In Texas, a client who is not pregnant and is referred to an HHSC-funded substance use intervention or treatment service by DFPS must be admitted to services within 72 hours or 3 business days, depending on the program or services.

Doctors and nurses are required by mandatory reporting laws to report suspected child abuse and neglect if they have reasonable cause to believe the child has been abused as defined by statute. Tex. Fam. Code § 261.101(b). Definitions of child abuse in Texas law include the current use of controlled substances by an adult in a manner or to the extent that the use results in physical, mental, or emotional injury to a child. Tex. Fam. Code § 261.001(1)(I).

DFPS Statewide Intake advances any reports of substance-exposed infants to the field for an investigation. During the investigation, multiple steps occur including: a child assessment, parental assessment, holistic family assessment, safety planning, and the development of initial services. In some cases, the parent has sufficient support and is protective and/or engaged in treatment services, thereby eliminating the need for further DFPS involvement beyond investigation. Other parents may be assisted in development of a plan and access to services during the investigation stage of services, or a Family-Based Safety Services (FBSS) stage may be opened to provide ongoing services without removal. Where safety cannot be assured, DFPS will seek removal of the infant.

Special Issue: The birth of a substance-exposed infant does not result in an automatic removal of that child, nor even an automatic disposition of child abuse or neglect. Each family's specific circumstance is assessed. DFPS works closely with Health and Human Services agency partners who provide substance use intervention or treatment services to strengthen the State's response to parents who engage in substance use or misuse.

1. Behavioral Health Division at DFPS

In Fiscal Year 2019, DFPS formed the Behavioral Health Services Division within CPS. The division now includes a Behavioral Health Services Division Administrator, a Trauma-Informed Care Manager, six new regional Trauma-Informed Care Program Specialists, a Behavioral Health Services Program Specialist Lead, three Substance Use Program Specialists, two CANS Program Specialists, and a Mental Health Program Specialist. The Medical Services Division covers medical and dental issues for CPS with Nurse Consultants and Well-Being Specialists. The Behavioral Health Services Division Administrator and the Trauma Informed Care Program Manager are based at the State Office in Austin. The Behavioral Health Services Program Specialist is located in Houston, one CANS Program Specialist operates in San Antonio, and a second CANS Program Specialist is in Houston. The Trauma Informed Care Program Specialist positions are based in San Antonio, Dallas, Houston, Corpus, Midland, and Paris. The division includes three Substance Use Program Specialists located in San Antonio, Dallas, and Houston. These positions complement two additional Substance Use Program Specialists and two Mental Health Program Specialists who are based in Austin and report to Child Protective Investigations. These staff work together to provide support, resources, and technical assistance to direct delivery staff in their work with families experiencing substance use disorders through every stage of service.