Texas Child Protection Law Bench Book

2023 version: As effective November 1, 2023

Investigations

Introduction

The primary purpose of a Department of Family and Protective Services (DFPS) investigation into allegations of child abuse or neglect is to protect the child. DFPS investigations are civil in nature and include an evaluation of the child's immediate safety and an assessment of future risk of abuse or neglect.

A. Initiation of an Investigation

Initiation of an investigation requires:

1. Abuse, Neglect, Exploitation or the Risk of Abuse or Neglect

"Abuse" includes the following acts or omissions by a person:

•   Mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning;

•   Causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning;

•   Physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;

•   Failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;

•   Sexual conduct harmful to a child's mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of a young child or children under Tex. Penal Code § 21.02, indecency with a child under Tex. Penal Code § 21.11, sexual assault under Tex. Penal Code § 22.011, or aggravated sexual assault under Tex. Penal Code § 22.021;

•   Failure to make a reasonable effort to prevent sexual conduct harmful to a child;

•   Compelling or encouraging the child to engage in sexual conduct as defined by Tex. Penal Code § 43.01, including compelling or encouraging the child in a manner that constitutes an offense of trafficking of persons under Tex. Penal Code § 20A.02(a)(7) or (a)(8), solicitation of prostitution under Tex. Penal Code § 43.021, or compelling prostitution under Tex. Penal Code § 43.05(a)(2);

•   Causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Tex. Penal Code § 43.21 or pornographic;

•   The current use by a person of a controlled substance as defined by Tex. Health & Safety Code Chapter 481, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child;

•   Causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Tex. Health & Safety Code Chapter 481;

•   Causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by Tex. Penal Code § 43.25;

•   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; or

•   Forcing or coercing a child to enter into a marriage. Tex. Fam. Code § 261.001(1).

"Neglect" means an act or failure to act by a person responsible for a child's care, custody, or welfare evidencing the person's blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child's physical health or safety.

"Neglect" includes:

•   The leaving of a child in a situation where the child would be exposed to an immediate danger of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;

•   The following acts or omissions by a person:

◦   placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or an immediate danger of immediate harm to the child;

◦   failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting an immediate danger of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child;

◦   the failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services have been offered and refused;

◦   placing a child in or failing to remove the child from a situation in which the child would be exposed to an immediate danger of sexual conduct harmful to the child; or

◦   placing a child in or failing to remove the child from a situation in which the child would be exposed to acts or omissions that constitute abuse under Tex. Fam. Code § 261.001(1)(E), (1)(F), (1)(G), (1)(H), or (1)(K) committed against another child;

•   The failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away; or

•   A negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy. Tex. Fam. Code § 261.001(4).

Neglect does not include:

•   The refusal by a person responsible for a child's care, custody, or welfare to permit the child to remain in or return to the child's home resulting in the placement of the child in the conservatorship of DFPS if:

◦   the child has a severe emotional disturbance;

◦   the person's refusal is based solely on the person's inability to obtain mental health services necessary to protect the safety and well-being of the child; and

◦   the person has exhausted all reasonable means available to the person to obtain the mental health services described by Tex. Fam. Code § 261.001(4)(B)(i)(b). Tex. Fam. Code § 261.001(4)(B)(i);

•   Allowing the child to engage in independent activities that are appropriate and typical for the child's level of maturity, physical condition, developmental abilities, or culture. Tex. Fam. Code § 261.001(4)(B)(ii).

•   Seeking a second opinion for a child's medical care or transferring a child's medical care to a new provider or facility. Tex. Fam. Code § 261.001(4)(B)(ii).

The DFPS Commissioner shall adopt rules to prohibit DFPS from making a finding of abuse or neglect against a person in a case in which DFPS is named managing conservator of a child who has a severe emotional disturbance only because the child's family is unable to obtain mental health services for the child. Tex. Fam. Code § 261.002(b)(1).

The refusal of a parent, guardian, or managing or possessory conservator of a child to administer or consent to the administration of a psychotropic medication to the child, or to consent to any other psychiatric or psychological treatment of the child, does not by itself constitute neglect of the child unless the refusal to consent:

•   Presents a substantial risk of death, disfigurement, or bodily injury to the child; or

•   Has resulted in an observable and material impairment to the growth, development, or functioning of the child. Tex. Fam. Code § 261.111(b).

“Exploitation” includes:

•   The illegal or improper use of a child or the child's resources for monetary or personal benefit or profit by an employee, volunteer, or other individual working under the auspices of a facility or program as further described by rule or policy. Tex. Fam. Code § 261.001(3).

2. By a Person Responsible for a Child's Care, Custody, or Welfare

•   A parent, guardian, managing or possessory conservator, or foster parent of the child;

•   A member of the child's family or household as defined by Tex. Fam. Code Chapter 71;

•   A person with whom the child's parent cohabits;

•   School personnel or a volunteer at the child's school; or

•   Personnel or a volunteer at a public or private child-care facility that provides services for the child or at a public or private residential facility where the child resides; or

•   An employee, volunteer, or other person working under the supervision of a licensed or unlicensed child-care facility, including a family home, residential child-care facility, employer-based day-care facility, or shelter day-care facility, as those terms are defined in Tex. Hum. Res. Code Chapter 42. Tex. Fam. Code § 261.001(5).

B. Making a Report

DFPS sets out the mandatory requirements for an investigation in CPS Policy Handbook § 2200.[1]

1. Call to the Hotline

An investigation of child abuse or neglect usually starts with a call to the hotline. Reports can also be submitted online on the Texas Abuse Hotline Website.[2] The reporter must self-identify but the identity of the reporter is confidential. Tex. Fam. Code § 261.201(a)(1). However, a court may order disclosure of the identity of the reporter or the information obtained through the investigation. Tex. Fam. Code § 261.201(b).

2. Lay Person's Duty to Report

Any person having reasonable cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person must immediately make a report. Tex. Fam. Code § 261.101(a).

In addition to the duty to report pursuant to Tex. Fam. Code § 261.101(a), a person must also report if the person has reasonable cause to believe that an adult was a victim of abuse or neglect as a child and the person determines in good faith that the disclosure of the information is necessary to protect the health and safety of another child. Tex. Fam. Code § 261.101(b-1).

3. Professional's Duty to Report

If a professional has reasonable cause to believe that a child has been abused or neglected or may be abused or neglected, the professional shall make a report no later than the 48th hour after the professional first suspects that the child has been abused or neglected. Tex. Fam. Code § 261.101(b).

A professional may not delegate to or rely on another person to make the report. Tex. Fam. Code § 261.101(b).

A professional who has the duty to report under Tex. Fam. Code § 261.101(b) must also report if the professional has reasonable cause to believe that an adult was a victim of abuse or neglect as a child and the professional determines in good faith that the disclosure of the information is necessary to protect the health and safety of another child. Tex. Fam. Code § 261.101(b-1).

The requirement to report under Tex. Fam. Code § 261.101 applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, and an employee of a clinic or health care facility that provides reproductive services. Tex. Fam. Code § 261.101(c).

4. Failure to Report

A person commits an offense if the person is required to make a report under Tex. Fam. Code § 261.101(a) and knowingly fails to make a report. Tex. Fam. Code § 261.109(a).

Failure to report when required is punishable as a Class A misdemeanor, except that the offense is a state jail felony if the child was a person with an intellectual disability who resided in a state supported living center or a facility licensed under Tex. Health & Safety Code Chapter 252 and the actor knew the child suffered serious bodily injury. Tex. Fam. Code § 261.109(b).

A professional as defined by Tex. Fam. Code § 261.101(b) commits an offense if the person is required to make a report under Tex. Fam. Code § 261.101(b) and knowingly fails to make a report. Tex. Fam. Code § 261.109(a-1).

An offense under Tex. Fam. Code § 261.109(a-1) is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the actor intended to conceal the abuse or neglect. Tex. Fam. Code § 261.109(c).

5. Immunities

A person acting in good faith who reports or assists in an investigation is immune from civil or criminal liability that might otherwise be imposed. Tex. Fam. Code § 261.106(a).

6. False Reports

Knowingly making a false report is punishable as a state jail felony, unless it is shown that the person has previously been convicted under this section, in which case the offense is a third-degree felony and carries a civil penalty of $1,000. Tex. Fam. Code § 261.107(a) and (e).

C. Fourth Amendment Requirements in an Investigation

For any investigative action that involves entering or remaining in a home, transporting a child for an interview, or removing a child from a parent's custody, DFPS must have consent, a court order, or exigent circumstances per Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404 (5th Cir. 2008).

1. Consent

An evaluation of consent is based on the totality of the circumstances and under a standard of objective reasonableness. Silence or passivity cannot form the basis of consent to enter. Also, mere acquiescence to a show of lawful authority is insufficient to establish voluntary consent. Once consent is given, the consent may be limited, qualified, or withdrawn. Gates, 537 F.3d at 420.

2. Court Order

If a caseworker cannot gain consent, they may seek a court order to allow entrance for an interview, examination, or investigation. The court may order admission by DFPS to the home, school, or other place where the child may be for an interview, examination, and investigation if the court has good cause to believe the child is in imminent danger of aggravated circumstances or has probable cause to believe the admission is necessary to protect the child from abuse or neglect. Tex. Fam. Code § 261.303(b). A hearing for an order may not be ex parte unless the court has probable cause to believe there is no time consistent with the health and safety of the child for a full hearing. Tex. Fam. Code § 261.303(f). The order must include the court's findings regarding the sufficiency of the evidence. Tex. Fam. Code § 261.303(g). The court must provide a copy of the order to a party upon request. Tex. Fam. Code § 261.303(h).

3. Exigent Circumstances

If there is not time to obtain a court order, however, DFPS can still enter or remain in a home, even absent consent, if there are exigent circumstances. Under this standard, there must be a reasonable cause to believe that the child is in immediate danger. Entering or remaining in the home for the sole purpose of interviewing the child does not suffice. Gates, 537 F.3d at 421-23.

4. Anonymous Tip

If a law enforcement agency receives an anonymous report of child abuse or neglect and refers the report to the Department, the Department must conduct an investigation to determine whether there is any evidence to corroborate the report. Tex. Fam. Code § 261.304(a). The tip must be corroborated through a preliminary investigation that can include an interview of the child's teachers or peers, an interview of the child at the school, or by looking for injuries on the child without removing any of the child's clothing. An investigation can include a visit to the child's home unless the alleged abuse or neglect can be confirmed or clearly ruled out without a home visit, an interview with and examination of the child, and an interview with the child's parents. Tex. Fam. Code § 261.304(b).

In determining whether to transport the child to another location for the interview, the caseworker should take into account the child's wishes. Gates, 537 F.3d at 424. A person who is notified of and attempts to interfere with the transportation can be charged with a Class B misdemeanor. Tex. Fam. Code § 261.302(f).

5. Taking Child into Separate Room for an Interview

Like a Terry stop [Terry v. Ohio, 392 U.S. 1, 21-22 (1968)], all that is required [to take a child into a separate room for an interview] is a reasonable suspicion of abuse or neglect so long as the interview is no more intrusive than necessary. Gates, 537 F.3d at 434.

6. Transporting a Child from School to Another Location for an Interview

Before transporting a child for an interview, DFPS must first attempt to notify the parent or other person having custody of the child. Gates, 537 F.3d at 429. Absent consent to transport, DFPS may obtain a court order. Although there is currently no express statutory provision authorizing such an order, Tex. Fam. Code § 261.303 may be applicable. According to the holding in Gates, in order to transport a child from a public school for an interview absent a court order or consent, a caseworker must have a reasonable belief that the child has been abused and probably will be abused again upon his return home at the end of the school day. Gates, 537 F.3d at 439.

7. Immediate Removal

If, before an investigation is completed, the investigating agency believes that the immediate removal of a child from their home is necessary to protect the child from further abuse, or neglect, the investigating agency must file a petition or take other action under Tex. Fam. Code Chapter 262 to provide for the temporary care and protection of the child. Tex. Fam. Code § 261.302(d).

•   Not speak with any agent of DFPS without legal counsel present;

•   Receive assistance from an attorney;

•   Have a court-appointed attorney if the person is indigent, they are the parent of the child, and DFPS seeks a court order under Tex. Fam. Code Chapter 262 or 264;

•   Record any interaction or interview subject to the understanding that the recording may be disclosed to DFPS, law enforcement, or another party under a court order;

•   Refuse to allow the investigator to enter the home or interview the children without a court order;

•   Have legal counsel present before allowing the investigator to enter the home or interview the child;

•   Withhold consent to the release of any medical or mental health records;

•   Withhold consent to any medical or psychological examination of the child; refuse to submit to a drug test; and

•   Consult with legal counsel prior to agreeing to any proposed voluntary safety plan.

D. Orders in Aid of Investigation

1. Interference

A person may not interfere with a DFPS investigation of a report of child abuse or neglect. Tex. Fam. Code § 261.303(a).

The court may also prohibit the removal of the child from the state during an investigation if the court:

•   Finds that DFPS has probable cause to conduct the investigation; and

•   Has reason to believe that the person may remove the child from the state. Tex. Fam. Code § 261.306(b).

Contumacious refusal to submit to orders in aid of investigation may be grounds for termination of parental rights in a subsequently filed Suit Affecting the Parent-Child Relationship (SAPCR). Tex. Fam. Code § 161.001(b)(1)(I).

2. Court Orders

If DFPS requests the information below, but is not allowed access, then the court having family law jurisdiction shall order:

•   Admission to the home, school, or place where a child may be for the interview, examination, and investigation if the court has good cause to believe the child is in imminent danger of aggravated circumstances or has probable cause to believe the admission is necessary to protect the child from abuse or neglect. Tex. Fam. Code § 261.303(b);

•   A child's physical, psychological, or psychiatric examination or the release of related medical records if the court has probable cause to believe the order is necessary to protect the child from abuse or neglect. Tex. Fam. Code § 261.303(c); or

•   A parent or caregiver's medical or mental examination and/or access to related records. Tex. Fam. Code § 261.305(b).

If the court determines that the parent or person is indigent, then the court shall appoint an attorney at the hearing relating to the examination or release of their medical records. Tex. Fam. Code § 261.305(c). The parent or person responsible for the child's care is entitled to notice and hearing prior to such a court order. Tex. Fam. Code § 261.305(d).

•   DFPS has filed an application seeking an order in aid of investigation and has shown good cause or probable cause for a court order because:

◦   DFPS cannot access the child;

◦   DFPS cannot obtain medical, psychiatric, or psychological records of the child;

◦   DFPS cannot obtain consent by the parent or caregiver of the child for a medical, psychological, or psychiatric examination; or

◦   the parent or caregiver refuses to cooperate with the investigation and refusal poses a risk to the child's safety.