C. Hearing After Emergency Removal With or Without a Court Order
1. When Must Hearing Be Held
A hearing must be held not later than the 14th day after the date the child was taken into possession unless the court grants an extension pursuant to Tex. Fam. Code § 262.201(a-3). Tex. Fam. Code § 262.201(a).
Although Tex. Fam. Code § 262.103 allows for the temporary order, temporary restraining order, and attachment of a child to be extended, there is no specific provision for the extension of the Adversary Hearing beyond the 14th day. If the hearing cannot be held within the 14 days, some courts convene and reset the hearing, while others rely on case law which indicates that the failure to conduct the Adversary Hearing does not deprive the court of its jurisdiction. In re J.M.C., 109 S.W.3d 591, 595 (Tex. App. – Fort Worth 2003, no pet.).
The court may, for good cause shown, postpone the full Adversary Hearing for not more than seven days from the date of the attorney’s appointment to provide the attorney time to respond to the petition and prepare for the hearing. The court may shorten or lengthen the extension granted under Tex. Fam. Code § 262.201(a-3), if the parent and the appointed attorney agree in writing. If the court postpones the full Adversary Hearing, the court shall extend a temporary order, temporary restraining order, or attachment issued by the court under Tex. Fam. Code § 262.102(a) for the protection of the child until the date of the rescheduled full Adversary Hearing. Tex. Fam. Code § 262.201(a-3).
3. Burden/Standard of Proof
Findings must be based on sufficient evidence to satisfy a person of ordinary prudence and caution. Tex. Fam. Code § 262.201(b).
Special Issue: Numerous studies indicate that African American children are disproportionately represented in the Texas child welfare system. According to data collected by DFPS, African American children are more likely to be removed, are less likely to be reunified, and spend longer waiting to be adopted. For more information regarding disproportionality, please see the Disproportionality chapter later in this Bench Book.
4. Required Findings if Child to Remain in Care
a. Danger to Physical Health and Safety
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. Tex. Fam. Code § 262.201(b)(1).
b. Urgent Need to Protect
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. Tex. Fam. Code § 262.201(b)(2).
In determining whether there is a continuing danger to the physical health or safety of the 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 § 262.201(d).
c. Reasonable Efforts
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(b)(3).
5. Court Actions/Orders if Child to Remain in Care
a. Issue an Appropriate Temporary Order
A temporary order rendered under Tex. Fam. Code Chapter 262 is valid and enforceable until properly superseded by a court with jurisdiction to do so. A court to which the suit has been transferred may enforce by contempt or otherwise a temporary order properly issued under Tex. Fam. Code Chapter 262. Tex. Fam. Code § 262.204.
b. Admonish and Notify Parents
Inform each parent in open court that parental and custodial rights and duties may be subject to restriction or termination unless the parent is willing and able to provide a safe environment for the child. Tex. Fam. Code § 262.201(c).
Before the commencement of the full Adversary Hearing, the court must inform each parent not represented by an attorney of:
• The right to be represented by an attorney; and
• If a parent is indigent and appears in opposition to the suit, the right to a court-appointed attorney. Tex. Fam. Code § 262.201(a-1).
c. Order Placement With Non-Custodial Parent or Relative
Unless it is not in the best interest of the child, place a child who has been removed from the child’s custodial parent with the child’s noncustodial parent or another relative of the child if placement with the noncustodial parent is not appropriate. Tex. Fam. Code § 262.201(e).
d. Render Protective Order, If Necessary
If the court finds that the child requires protection from family violence by a member of the child’s family or household, the court shall render a protective order for the child under Tex. Fam. Code Chapter 105. Tex. Fam. Code § 262.205(c)(1).
e. Inquire About Native American Heritage
The court shall ask all parties present at the full Adversary Hearing whether the child or the child’s family has a Native American heritage and identify any Native American tribe with which the child may be associated. Tex. Fam. Code § 262.201(a-4). For more information regarding requirements when a child has a Native American heritage, please see the Bench Book Chapter on the Indian Child Welfare Act.
f. Set Status Hearing
Although not statutorily required, the Status Hearing date is usually set at the Adversary Hearing and open-court notice to parties can be given.
Special Issue: Courts should consider setting the dates for Status, Initial Permanency, and Final Hearings at the start of the case as it helps provide all parties and interested persons with notice of future hearings.