A. Presence in Court

1. The Law

Chapter 263 of the Texas Family Code 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, or Status Hearing. 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 there is simply no question that children in foster care repeatedly express the desire to be involved in decisions about their lives.[231] Children are often told that “the judge makes the decisions.” Being involved gives the child a sense of control, helps them understand the process, and direct contact with the court benefits the judge and the youth. There are other reasons to engage a child in court including: 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 protection hearings. A few examples include: missed time in school and other important events for the child; 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; court dockets are not accommodating; notice is inadequate; and judges are sometimes uncomfortable speaking with and interviewing children.