D. Hearing When Child Not in Possession of DFPS (Show Cause Hearing)

1. Filed Under Tex. Fam. Code § 262.113

DFPS can file a suit requesting possession of a child after notice and a hearing. The suit must be supported by an affidavit sworn to by a person with personal knowledge and stating facts that satisfy the burden of proof. Tex. Fam. Code § 262.113.

2. When Must Hearing Be Held

In a suit requesting possession of a child after notice and hearing, the suit shall be promptly set for hearing. Tex. Fam. Code § 262.205(a).

3. Conduct Hearing Under Tex. Fam. Code § 262.205

After the hearing, the court may grant the request to remove the child from the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession of the child if the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:

•   Reasonable efforts have been made to prevent or eliminate the need to remove the child from the child’s home; and

•   Allowing the court to remain in the home would be contrary to the child’s welfare. Tex. Fam. Code § 262.205(b).

If the court orders removal of the child from the child’s home, the court shall:

•   Issue an appropriate temporary order under Tex. Fam. Code Chapter 105; and

•   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 § 262.205(c).

4. Burden/Standard of Proof

Findings must be based on sufficient evidence to satisfy a person of ordinary prudence and caution that:

•   Reasonable efforts have been made to prevent or eliminate the need to remove the child from the child’s home; and

•   Allowing the child to remain in the home would be contrary to the child’s welfare. Tex. Fam. Code § 262.205(b).

5. Court Actions/Orders if Child is Placed 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 Code Chapter 262 is valid and enforceable until properly superseded by a court with jurisdiction to do so.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. Order Placement With Non-Custodial Parent or Relative

Unless it is not in the best interest of the child, the court shall place a child who has been removed under Tex. Fam. Code§ 262.205 with:

•   The child’s noncustodial parent; or

•   Another relative of the child if placement with the noncustodial parent is inappropriate. Tex. Fam. Code§ 262.205(e).

Special Issue: Although not required at a Show Cause Hearing, courts should consider whether to 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, as is required during an Adversary Hearing. Tex. Fam. Code § 262.201(c). Additionally, although required before the commencement of the full Adversary Hearing, at a Show Cause Hearing, the court should consider whether to 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. 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).

d. 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.

e. Ensure Child Placement Resources Form is Complete

The Child Placement Resources Form should:

•   Instruct the parents, or other person having legal custody of the child, to identify three individuals who could be relative caregivers or designated caregivers; and

•   Inform the parent or other person how to submit the form to DFPS or other agency either in person or by fax or email. Tex. Fam. Code § 261.307(a)(2).