D. Hearing When Child Not in Possession of DFPS

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, a full Adversary Hearing must be held not later than the 30th day after the date the suit is filed. Tex. Fam. Code § 262.201(b).

3. Conduct Hearing Under Tex. Fam. Code § 262.201

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:

•   There is a continuing danger to the physical health or safety of the child caused by an act or failure to act of the person entitled to possession of the child and continuation of the child in the home would be contrary to the child’s welfare; 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 § 262.201(j)

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 § 262.201(m).

4. 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 Code Chapter 262 is valid and enforceable until properly superseded by a court with jurisdiction to do so.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 with:

•   The child’s noncustodial parent; or

•   Another relative of the child if placement with the noncustodial parent is inappropriate. Tex. Fam. Code§ 262.201(n).

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 § 262.201(k).

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).