Texas Child Protection Law Bench Book

2023 version: As effective November 1, 2023

Removal

Introduction

Tex. Fam. Code Chapter 262 governs the circumstances in which DFPS may seek managing conservatorship of a child if there is an immediate need for the child's removal from the home due to child abuse or neglect. Tex. Fam. Code Chapter 262, Subchapter B.

A. Removal or Conservatorship of a Child

1. Authorized Actions by Governmental Entity

A governmental entity with an interest in the child may file a suit affecting the parent-child relationship requesting an order or take possession of a child without a court order. Tex. Fam. Code § 262.001(a).

2. Child's Health and Safety is Paramount Concern

When determining if reasonable efforts have been made with respect to preventing or eliminating the need to remove a child from the child's home or to make it possible to return a child to the child's home, the child's health and safety is the paramount concern. Tex. Fam. Code § 262.001(b).

3. Restriction on Removal

Tex. Fam. Code § 262.116 prohibits DFPS from taking possession of a child based on evidence that:

• The parent homeschooled the child;

• The parent is economically disadvantaged;

• The parent has been charged with a nonviolent misdemeanor (other than one listed in Tex. Penal Code Title 5 or 6, or involves family violence as defined by Tex. Fam. Code § 71.004;

• The parent provided or administered low-THC cannabis if the low-THC cannabis was prescribed for the child;

• The parent declined immunization for a child for reasons of conscience, including religious belief;

• The parent allowed a child to engage in independent activities;

• The parent tested positive for marijuana unless the parent's marijuana use caused significant impairment to the child's physical or mental health or emotional development; or

• The parent sought a second opinion for a child's medical care or transferred a child's medical care to a new provider or facility.

Tex. Fam. Code § 262.116 does not prohibit DFPS from gathering or offering evidence of these actions as part of an effort to take possession of a child.

B. Jurisdiction, Transfer, and Venue

1. Jurisdiction

A suit brought by DFPS requesting an order under Tex. Fam. Code Chapter 262 may be filed in a court with jurisdiction to hear the suit in the county in which the child is found. Tex. Fam. Code § 262.002.

DFPS must file each suit in the same court a petition based on allegations of abuse or neglect arising from the same incident or occurrence and involving children living in the same home. Tex. Fam. Code § 262.015.

If a court of this state has acquired continuing, exclusive jurisdiction, no other court of this state has jurisdiction of a suit with regard to that child except as provided by Tex. Fam. Code Chapter 155, Tex. Fam. Code §103.001(b), or Tex. Fam. Code Chapter 262. Tex. Fam. Code § 155.001(c).

2. Transfer

Tex. Fam. Code § 155.201 requires that upon receiving notice that a court exercising emergency jurisdiction under Chapter 262 has ordered the transfer of a suit affecting the parent-child relationship under Tex. Fam. Code § 262.203(a)(2), a court of continuing, exclusive jurisdiction (CCEJ) must transfer the proceedings to the court exercising jurisdiction under Chapter 262. The court exercising emergency jurisdiction under Chapter 262 may also transfer the suit affecting the parent-child relationship to the CCEJ for the convenience of the parties and if transfer is in the child's best interest. However, a court hearing the case under Chapter 262 must transfer any suit affecting the parent child relationship to the court in which the suit for dissolution of marriage is pending once the Chapter 262 court has rendered a final order. Tex. Fam. Code Chapter 263, Subchapter E. Tex. Fam. Code § 262.203(a)(3); Tex. Fam. Code Chapter 6, Subchapter E. Tex. Fam. Code § 6.407(a), (b) and (c); Tex. Fam. Code Chapter 103, Tex. Fam. Code § 103.002; Tex. Fam. Code Chapter 155, Subchapter C. Tex. Fam. Code § 155.201(a).

DFPS is required to file a transfer order issued under Tex. Fam. Code § 262.203(a)(2) with the clerk of the CCEJ so that the clerk of the CCEJ can, within the time required by Tex. Fam. Code § 155.207(a), transfer the case to the court exercising jurisdiction under Chapter 262. Tex. Fam. Code § 155.204. Pursuant to Tex. Fam. Code § 262.203, an order of transfer must include:

• The date of any future hearings in the case that have been scheduled by the transferring court;

• Any date scheduled by the transferring court for the dismissal of the suit under Tex. Fam. Code § 263.401; and

• The name and contact information of each attorney ad litem (AAL) or guardian ad litem (GAL) appointed in the suit. Tex. Fam. Code § 262.203(d).

The court to which a suit affecting the parent-child relationship is transferred may retain an attorney ad litem or guardian ad litem appointed by the transferring court. If the court finds that the appointment of a new attorney ad litem or guardian ad litem is appropriate, the court shall appoint that attorney ad litem or guardian ad litem before the earlier of:

• The 10th day after the date of receiving the order of transfer; or

• The date of the first scheduled hearing after the transfer. Tex. Fam. Code § 262.203(e).

Tex. Fam. Code § 155.207(a) and (c) address the transfer of court files from one jurisdiction to another. Not later than the 10th working day after the date an order of transfer is signed, the clerk of the court transferring a proceeding shall send to the proper court to which transfer is being made:

• The pleadings in the pending proceeding and any other document specifically requested by a party;

• Certified copies of all entries in the minutes;

• A certified copy of each final order; and

• A certified copy of the order of transfer signed by the transferring court. Tex. Fam. Code § 155.207(a).

On receipt of the pleadings, documents, and orders from the transferring court, the clerk of the transferee court shall docket the suit and shall notify the judge of the transferee court, all parties, the clerk of the transferring court, and, if appropriate, the transferring court's local registry that the suit has been docketed. Tex. Fam. Code § 155.207(c).

3. Venue

Venue lies in the county where the child resides; generally speaking that county is where the child's parent lives, unless:

• Another court has continuing exclusive jurisdiction under Tex. Fam. Code Chapter 155; or

• Venue is fixed in a suit for dissolution of marriage under Tex. Fam. Code Subchapter D, Chapter 6. Tex. Fam. Code § 103.001(a).

C. Emergency Removal With a Court Order

1. Filing a Petition Before Taking Possession of a Child

An original suit filed by a governmental entity requesting permission to take possession of a child without prior notice and a hearing must be supported by a sworn affidavit of a person with personal knowledge stating facts sufficient to satisfy a person with ordinary prudence and caution that:

• There is an immediate danger to the child's physical health or safety or the child has been the victim of neglect or sexual abuse and that continuation in the home would be contrary to the child's welfare;

• There is no time, consistent with the physical health or safety of the child, for a full Adversary Hearing;

• The child could not be adequately protected by a kick-out order of the perpetrator under Tex. Fam. Code § 262.1015 or Tex. Fam. Code § 262.1016.

• The placement with a relative or designated caregiver under a Parental Child Safety Placement (PCSP) was:

◦ Offered but refused;

◦ Was not possible because there was no time, consistent with the physical health or safety of the child and the nature of the emergency, to conduct the caregiver evaluation; or

◦ Would pose an immediate danger to the child; and

• Reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child. Tex. Fam. Code § 262.101(a).

The affidavit must describe with specificity in a separate section all reasonable efforts made to prevent or eliminate removal or return the child home. Tex. Fam. Code § 262.101(b).

2. Emergency Order Authorizing Possession of a Child Prior to Removal

Before a court may, without prior notice and a hearing, issue a temporary order for the conservatorship of a child under Tex. Fam. Code § 105.001(a)(1) or a temporary restraining order or attachment of a child authorizing a governmental entity to take possession of a child, the court must find that:

• There is an immediate danger to the physical health or safety of the child or the child has been the victim of neglect or sexual abuse;

• Continuation in the home would be contrary to the child's welfare;

• There is no time, consistent with the physical health or safety of the child and the nature of the emergency, for a full Adversary Hearing;

• The child could not be adequately protected by a kick-out order of the perpetrator under Tex. Fam. Code § 262.1015 or Tex. Fam. Code § 262.1016.

• The placement with a relative or designated caregiver under a PCSP was:

◦ Offered but refused;

◦ Was not possible because there was no time, consistent with the physical health or safety of the child and the nature of the emergency, to conduct the caregiver evaluation; or

◦ Would pose an immediate danger to the child; 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 § 262.102(a).

The emergency removal order must describe with specificity in a separate section all reasonable efforts made to prevent or eliminate removal or return the child home. Tex. Fam. Code § 262.102(e).

In determining whether there is an immediate danger to the physical health or safety of a child, the court may consider whether the child's household includes a person who has:

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

• Sexually abused another child. Tex. Fam. Code § 262.102(b).

The court may not order and emergency removal to be based solely on the medical opinion of a doctor under contract with DFPS who has not examined the child. Tex. Fam. Code § 262.102(b-1).

The court shall render a temporary order under Tex. Fam. Code Title 4 for the protection of the child if the court finds that, based on the recommendation of or request by DFPS:

• Child abuse or neglect has occurred; and

• The child requires protection from family violence by a member of the child's family or household. Tex. Fam. Code § 262.102(c).

3. Removal of Alleged Perpetrator of Physical/Sexual Abuse

If DFPS determines after an investigation that child abuse has occurred and that the child would be protected in the child's home by the removal of the alleged perpetrator of the abuse, DFPS shall file a petition for the removal of the alleged perpetrator from the residence rather than attempt to remove the child from the residence. Tex. Fam. Code § 262.1015(a).

Notwithstanding Tex. Fam. Code § 262.1015(a), if DFPS determines that a protective order under Tex. Fam. Code Title 4 provides a reasonable alternative to obtaining an order under Tex. Fam. Code § 262.1015(a), DFPS may file an application for a protective order on behalf of the child instead of or in addition to obtaining a temporary restraining order or can assist the parent or other adult with whom the child resides in obtaining a protective order. Tex. Fam. Code § 262.1015(a-1).

A court has the authority to issue a temporary restraining order for the removal of an alleged perpetrator if the DFPS petition states facts sufficient to satisfy the court that:

• There is immediate danger to the physical health or safety of the child or the child has been the victim of sexual abuse;

• There is no time, consistent with the physical health or safety of the child, for an Adversary Hearing;

• The child is not in danger of abuse from a parent or other adult with whom the child will continue to reside in the residence of the child;

• The parent or other adult with whom the child will continue to reside in the child's home is likely to make reasonable efforts to monitor the residence and report to DFPS and appropriate law enforcement any attempt by the alleged perpetrator to return to the residence; and

• The issuance of the order is in the best interest of the child. Tex. Fam. Code § 262.1015(b).

The temporary restraining order:

• Is to be served on the alleged perpetrator as well as the adult with whom the child will continue to reside. Tex. Fam. Code § 262.1015(c).

• Expires not later than the 14th day after the order was rendered, unless the court grants an extension under Tex. Fam. Code § 262.201(a-5), (e), or (e-1). Tex. Fam. Code § 262.1015(d).

• Requires that the other adult with whom the child will continue to reside make a reasonable effort to monitor the residence and report to DFPS and the appropriate law enforcement agency any attempt by the alleged perpetrator to return to the residence. Tex. Fam. Code § 262.1015(e).

The court shall order the removal of an alleged perpetrator if the court finds that the child is not in danger of abuse from a parent or other adult with whom the child will continue to reside in the child's residence and that:

• The presence of the alleged perpetrator in the child's residence constitutes a continuing danger to the physical health or safety of the child; or

• The child has been the victim of sexual abuse and there is a substantial risk that the child will be the victim of sexual abuse in the future if the alleged perpetrator remains in the residence. Tex. Fam. Code § 262.1015(f).

Removal of an alleged perpetrator from the child's home was cited by the Supreme Court of Texas as a means of protecting a child short of separating the child from the parents and placing the child in foster care. See In re Tex. Dep't of Family and Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008, orig. proceeding).

4. Failure to Report Perpetrator's Return

A person commits an offense if the person is a parent or other person with whom a child resides, the person is served with an order, and the person fails to make a reasonable effort to monitor the residence of the child or to report to DFPS and the appropriate law enforcement agency an attempt by the alleged perpetrator to return to the residence. An offense under this section is a Class A misdemeanor. Tex. Fam. Code § 262.1015(g).

5. Criminal Offense for Returning to Child's Residence

A person commits an offense if, in violation of a court order under this section, the person returns to the residence of the child the person is alleged to have abused. An offense under this subsection is a Class A misdemeanor, except that the offense is a felony of the third degree if the person has previously been convicted under this subsection. Tex. Fam. Code § 262.1015(h).

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 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; or

• 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).

An authorized representative of DFPS, a law enforcement officer, or a juvenile probation officer may take possession 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).

An authorized representative of DFPS, a law enforcement officer, or a juvenile probation officer may not take possession of a child based solely on the medical opinion of a doctor under contract with DFPS who has not examined the child. Tex. Fam. Code § 262.104(c).

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:

• That continuation in the home would be contrary to the child's welfare;

• There was no time, consistent with the child's health and safety, for a full adversary hearing under Tex. Fam. Code Subchapter C;

• That the child could not be adequately protected by a kick-out order of the perpetrator under Tex. Fam. Code § 262.1015 or Tex. Fam. Code § 262.1016.

• That placement with a relative or designated caregiver under a PCSP was:

◦ Offered but refused;

◦ Was not possible because there was no time, consistent with the physical health or safety of the child and the nature of the emergency, to conduct the caregiver evaluation; or

◦ Would pose an immediate danger to the child; and

The affidavit must describe with specificity in a separate section all reasonable efforts made to prevent or eliminate removal or return the child home. Tex. Fam. Code § 262.105(c).

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 must 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 Tex. Health & Safety Code Chapter 481, 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;

• That the child could not be adequately protected by a kick-out order of the perpetrator under Tex. Fam. Code § 262.1015 or Tex. Fam. Code § 262.1016.

• That placement with a relative or designated caregiver under a PCSP was:

◦ Offered but refused;

◦ Was not possible because there was no time, consistent with the physical health or safety of the child and the nature of the emergency, to conduct the caregiver evaluation; or

◦ Would pose an immediate danger to the child; 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).

If the court does not order the return of the child at an initial hearing under Tex. Fam. Code § 262.107(a), the court must describe in writing and in a separate section the reasonable efforts, consistent with the circumstances and providing for the safety of the child, that were made to prevent or eliminate the need for the removal of the child. Tex. Fam. Code § 262.107(c).

Special Issue: Pursuant to Tex. Fam. Code § 262.206, ex parte hearings authorized under Tex. Fam. Code Chapter 262 must be recorded by audio or video recording or a court reporter transcription. On request of a party to the suit, the court must provide a copy of the record of an ex parte hearing to the party.

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).

E. Expedited Hearing and Appeal

1. Expedited Hearing

DFPS is entitled to an expedited hearing under Tex. Fam. Code Chapter 262 in any proceeding in which a hearing is required if DFPS determines that a child should be removed from the child's home because of an immediate danger to the physical health or safety of the child. Tex. Fam. Code § 262.112(a).

2. Expedited Appeal

In any proceeding in which an expedited hearing is held under Tex. Fam. Code § 262.112(a), DFPS, a parent, guardian, or other party to the proceeding is entitled to an expedited appeal on a ruling by the court that the child may not be removed from the child's home. Tex. Fam. Code § 262.112(b).

3. Subsequent Allegation

If a child is returned to the child's home after a removal in which DFPS was entitled to an expedited hearing under Tex. Fam. Code § 262.112 and the child is subject of a subsequent allegation of abuse or neglect, DFPS or any other interested party is entitled to an expedited hearing on the removal of the child from the child's home in the manner provided by Tex. Fam. Code § 262.112(a) and to an expedited appeal in the manner provided by Tex. Fam. Code § 262.112(b). Tex. Fam. Code § 262.112(c).