Texas Child Protection Law Bench Book
2024 version: As effective October 1, 2024
Child and Youth Voice
Introduction
Please see the Checklist Section for the ABA Child Interview Bench Cards.
A. Presence in Court
1. The Law
Tex. Fam. Code Chapter 263 mandates that all children and youth who are in the conservatorship of DFPS attend all permanency hearings. Specifically, Tex. Fam. Code § 263.302 states that the child shall attend each permanency hearing, unless the court specifically excuses the child's attendance, and that the court shall consult with the child in a developmentally appropriate manner regarding the child's permanency plan, if the child is four years of age or older and the court determines it is in the best interest of the child. Failure by the child to attend a hearing does not affect the validity of an order rendered at the hearing. Tex. Fam. Code § 263.302.
The law does not require or appear to contemplate that the child will attend an Ex Parte, Adversary Hearing, Status Hearing, or any hearings for Orders to Participate cases filed under Tex. Fam. Code § 264.203. Although there are different interpretations, many read the law to say that the child must attend each permanency hearing, unless the judge makes an individual determination that excuses that child from attending a specific hearing. Issuing a blanket order excusing a child from attending permanency hearings or even more generally, for all children to be excused from all permanency hearings, is not considered a best practice. Additionally, and of note, youth who are committed to the Texas Juvenile Justice Department may (and should) attend permanency hearings by video, telephone, or in person. Tex. Fam. Code § 263.302.
2. Pros of Involving Children in Court Proceedings
There have been many studies by the American Bar Association as well as Court Improvement Programs around the country on this singular issue, and children in foster care repeatedly express the desire to be involved in decisions about their lives.[249] Children are often told that “the judge makes the decisions.” Being involved in court proceedings gives children a sense of control, helps them understand the process, and provides direct contact with the court which benefits the judge and the child. There are other reasons to engage a child in court, including the following factors: attorneys are not always reliable and informed advocates; hearing quality is better when the judge can hear directly from the child; hearings can present an opportunity for parent-child visitation; and foster parents and relatives caring for the child often attend because they bring the child to the hearing.
3. Cons of Involving Children in Court Proceedings
There are also cons of involving or requiring the presence of children in child welfare hearings. A few examples include the following factors: missed time in school and other important events for children, information shared in court can be emotionally damaging for children, and children at times may not want to attend. Other obstacles include lack of transportation; timing of court dockets are not accommodating; notice is inadequate; and judges are sometimes uncomfortable speaking with and interviewing children.
B. Child and Youth Engagement
Making court attendance a positive experience for children and youth is critical. Judges can help make the experience for everyone feel more beneficial by utilizing the following practices and setting expectations for the courtroom:
• Ensure attorneys and caseworkers do their job by helping to prepare the child for the hearing.
• Learn child-specific interviewing techniques so that engaging the child in conversation is easier. Even young children have the competence to tell adults what they want and need when questioned in an age-appropriate manner.
• Restructure dockets and offer to schedule hearings involving children in the afternoon, after school.
• Employ video conferencing as a convenient alternative for children, youth, and their caregivers.
• Invite youth to submit letters or other information to the court.
Generally, every child should appear at every Permanency Hearing. The Family Code presumes that all children will attend their Permanency Hearings, but also accommodates the occasion when children should be excused from attending by the judge. The expectation is that the court will excuse a child on a case-by-case basis and not operate under a blanket order or rule.
For a more complete report on the benefits of youth in court and practical tips for accommodating their presence, please read the Children's Commission's July 2016 report on Youth Presence in Court Proceedings .[250]
To hear examples from youth formerly in care about their different experiences attending permanency hearings, judges can access the 2021 Judicial Trauma Institute session Learning from the Experts: A Panel Discussion on Lived Experience[251] and the 2022 presentation “Enhancing the Experience of Children & Youth in Court: How Judges and Attorneys Can Prepare and Support Youth Attending Court.[252]
C. Talking with Children and Youth in Court
Children and youth involved in the child welfare system can often feel disconnected from what is occurring around them. By speaking with youth directly and involving them in the process, they are given the opportunity to share their feelings, desires, and needs. Talking with children requires some skill; below are some questions that can help get the conversation started. Sharing some of your own answers to the questions can create a more natural conversation and help the youth feel more comfortable and willing to share honestly. Acknowledging some of their answers in the moment and later will also let them know you are hearing them. For a full example by age group, consult the New York State Permanent Judicial Commission on Justice for Children's document “Tools for Engaging Children in Their Court Proceedings.”[253]
1. Initial Questions
• Make introductions.
• Did I pronounce your name correctly?
• Do you know who everyone is here?
• How old are you?
• Tell me about something that has happened to you since I last saw you.
• Tell me about something that you did recently that you are proud of.
2. School
• What is your favorite subject?
• Are there any subjects where you would like to have additional help? (older youth)
• Have you changed schools during the school year? When was the last time?
• What would help you do better in school?
• Have you started to think about college or vocational school? (older youth)
3. Friends
• What do you do for fun?
• Who do you do that with?
4. Family
• When was your last visit with your family?
• What did you do at your last visit with your siblings? When was that?
• What kind of chores do you have?
5. Health
• Have you been to the doctor since I last saw you? The dentist?
• Who would you talk to if you do not feel well or have any questions about your health?
6. Feelings
• What makes you feel happy?
• What worries you the most?
• When you think about the future, what are you most concerned about? What are you most excited about?
7. Wrap-up Questions
• Did anyone use any words you did not understand today?
• Did you want to tell me anything? Do you want to talk with me separately?
• Do you have any questions for me or for anyone else here?
Making notes on the conversation with the child or youth may be beneficial so that when they return for their next conference, any concerns can be readdressed. Following up on small details can also help create a more trusting relationship with the child or youth.
D. Normalcy
1. What Is Normalcy?
Tex. Fam. Code § 264.001 requires court consideration of age-appropriate normalcy activities, defined as an activity or experience:
• That is generally accepted as suitable for a child's age or level of maturity or that is determined to be developmentally appropriate for a child based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for the age or age group; and
• In which a child who is not in the conservatorship of DFPS is generally allowed to participate, including extracurricular activities, cultural and enrichment activities, and employment opportunities. Tex. Fam. Code § 264.001(1).
In addition to the requirements of Tex. Fam. Code § 263.306(a-1), at each Permanency Hearing before a final order is rendered, the court shall review DFPS' efforts to ensure that the child has regular, ongoing opportunities to engage in age-appropriate normalcy activities, including activities not listed in the child's service plan. Tex. Fam. Code § 263.306(c).
Tex. Fam. Code § 263.5031 requires that at each Permanency Hearing After a Final Order the court shall review DFPS' efforts to ensure that the child has regular, ongoing opportunities to engage in age-appropriate normalcy activities as defined by Tex. Fam. Code § 264.001; this may include activities not listed in the child's service plan.
DFPS must establish a pilot program to assist youth in foster care to achieve financial security and independence. The program must include an agreement with financial institutions to establish saving and checking accounts for youth in foster care between the ages of 14 and 21. The youth in foster care are to be the sole owners of the accounts even without a co-signor. The financial institution may not require maintenance, overdraft, insufficient funds, inactivity, or other penalty fees. DFPS may partner with non-profits and foundations to provide matching funds for deposits. Tex. Fam. Code § 264.1215.
2. Reasonable and Prudent Parent Standard
In determining whether to allow a child in the managing conservatorship of DFPS to participate in an activity, a substitute caregiver must exercise the standard of care of a reasonable and prudent parent. Tex. Fam. Code § 264.125(b).
In Texas, the “standard of care of a reasonable and prudent parent” means the standard of care that a parent of reasonable judgment, skill, and caution would exercise in addressing the health, safety, and welfare of a child while encouraging the emotional and developmental growth of the child, taking into consideration:
• The overall health and safety of the child;
• The child's age, maturity, and development level;
• The best interest of the child based on the caregiver's knowledge of the child;
• The appropriateness of a proposed activity and any potential risk factors;
• The behavioral history of the child and the child's ability to safely participate in a proposed activity;
• The importance of encouraging the child's social, emotional, and developmental growth; and
• The importance of providing the child with the most family-like experience possible. Tex. Fam. Code § 264.001(5).
A foster parent, other substitute caregiver, family relative or other designated caregiver, or licensed child placing agency caring for a child in the managing conservatorship of DFPS is not liable for harm caused to the child resulting from the child's participation in an age-appropriate normalcy activity approved by the caregiver if, in approving the child's participation in the activity, the caregiver exercised the standard of care of a reasonable and prudent parent. Tex. Fam. Code § 264.114(c).
3. Normalcy Resources
For a more complete report including the importance of normalcy and tips for encouraging normalcy, please read the Children's Commission's May 2019 Normalcy for Children and Youth in Foster Care Round Table Report.[254]
Capacity Building Center for States, Having the Normalcy Conversation: A Guide for Discussing Developmentally Appropriate Services for Children, Youth, and Young Adults in Foster Care[255]
Texas CASA, Normalcy Matters: A Guide to Supporting Children & Youth in Texas Foster Care[256]