B. Trafficking and Child Welfare

1. DFPS Investigations Involving Trafficking

The definition of child abuse includes compelling or encouraging a child to engage in sexual conduct as defined by Tex. Penal Code § 43.01 including compelling or encouraging a child in a manner that constitutes an offense of trafficking of persons under Tex. Penal Code § 20A.02(a)(7) or (8), solicitation of prostitution under Tex. Penal Code § 43.021, or compelling prostitution under Tex. Penal Code § 43.05(a)(2). Tex. Fam. Code § 261.001(1)(G).

Knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked in a manner punishable as an offense under Tex. Penal Code § 20A.02(a)(5), (a)(6), (a)(7), or (a)(8), or the failure to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under any of those sections also constitutes child abuse. Tex. Fam. Code § 261.001(1)(L).

2. Trafficking May be Considered as Basis for Removal of Child

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 a child consistent with the health and safety of that child, an authorized DFPS representative, a law enforcement officer, or a juvenile probation officer may take possession of a child without a court order under the following conditions related to trafficking:

•   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; 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 child has been the victim of sexual abuse or of trafficking under Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03. Tex. Fam. Code § 262.104(a)(3)-(4).

3. Standard for Decision at Initial Hearing After Taking Possession Includes Consideration of Trafficking

The court shall 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, in relevant part, shows 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 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;

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

•   The child would not be adequately protected in the child's home with an order for the removal of the alleged perpetrator under Tex. Fam. Code § 262.1015 or Tex. Fam. Code § 262.1016 or a protective order issued under Tex. Fam. Code Title 4;

•   Placing the child with a relative or designated caregiver or with a caregiver under a paternal child safety placement agreement authorized by Tex. Fam. Code Chapter 264 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 physical health or safety of 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).

4. Required Findings at Adversary Hearing if Child Victim of Trafficking to Remain in Care

In a suit filed under Tex. Fam. Code § 262.101 or Tex. Fam. Code § 262.105, at the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:

•   There was a danger to the physical health or safety of the child, including a danger that the child would be a victim of trafficking under Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03, which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;

•   The urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and

•   Reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home. Tex. Fam. Code § 262.201(g).

If, at the conclusion of a full adversary hearing, the court renders an order under Tex. Fam. Code § 262.201(g) or (g-1), the court must describe in writing and in a separate section the reasonable efforts that were made to enable the child to return home and the substantial risk of a continuing danger if the child is returned home, as required by Tex. Fam. Code § 262.201(g)(3); or the reasonable efforts that were made to enable a person's possession of the child and the continuing danger to the physical health or safety of the child as required by Tex. Fam. Code § 262.201(g-1)(2). Tex. Fam. Code § 262.201(g-2).

5. Aggravated Circumstances

The court may find under Tex. Fam. Code § 262.2015(a) that a parent has subjected the child to aggravated circumstances if the parent has engaged in conduct against the child or another child of the parent that would constitute an offense of trafficking of persons under Tex. Penal Code § 20A.02(a)(7) or (a)(8). Tex. Fam. Code § 262.2015(b)(3)(O).