G. Mandatory Child-Specific Considerations

1. Child-Attendance is Mandatory

The child must attend each Permanency Hearing, unless specifically excused by the court. If the child is four years of age or older and if the court determines it is in the best interest of the child, the court shall consult with the child in a developmentally appropriate manner regarding the child’s permanency plan. Failure by the child to attend a hearing does not affect the validity of an order rendered at the hearing. Tex. Fam. Code § 263.302.

Despite the many improvements Texas has made over the past several years, involving youth in the court process and ensuring their voice is heard and considered continues to be a challenge. The Texas Family Code has been amended many times to make it clear that children and youth must attend hearings, and to place additional duties on attorneys ad litem, judges, and the Department to meet with children in advance of court hearings. Yet, children and youth are routinely excluded from meaningful participation, resulting in the feeling that their voices are not heard and their opinions are not important. There have also been many studies by the American Bar Association (ABA) as well as Court Improvement Programs around the country on this singular issue, and there is simply no question that foster youth repeatedly express the desire to be involved in decisions about their lives. Being involved gives the youth a sense of control, helps them understand the process, and direct contact with the court benefits the judge and the youth.

Special Issue: In 2008, the ABA National Child Welfare Resource Center on Legal and Judicial Issues produced five judicial bench cards to assist judges in preparing, accommodating, and interviewing children who attend court. The judicial bench cards are broken down by age: Ages 0-12 months, 3-5 years, 5-11 years, 12-15 years, and 16 years and over. These bench cards are included in the Checklist section of this Bench Book.

2. Age-Appropriate Normalcy Activity

Tex. Fam. Code § 264.001 requires court consideration of age-appropriate normalcy activities, defined as an activity or experience:

•   That is generally accepted as suitable for a child’s age or level of maturity or that is determined to be developmentally appropriate for a child based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for the age or age group; and

•   In which a child who is not in the conservatorship of DFPS is generally allowed to participate, including extracurricular activities, cultural and enrichment activities, and employment opportunities. Tex. Fam. Code § 264.001(1).

In addition to the requirements of Tex. Fam. Code§ 263.306(a-1), at each Permanency Hearing the court shall review DFPS efforts to ensure that the child has regular, ongoing opportunities to engage in age-appropriate normalcy activities, including activities not listed in the child’s service plan. Tex. Fam. Code § 263.306(c).

DFPS shall use its best efforts to normalize the lives of children in the managing conservatorship of DFPS by allowing substitute caregivers, without the prior approval of DFPS, to make decisions similar to those a parent would be entitled to make regarding a child’s participation in age-appropriate normalcy activities. Tex. Fam. Code § 264.125(a).

In determining whether to allow a child in the managing conservatorship of DFPS to participate in an activity, a substitute caregiver must exercise the standard of care of a reasonable and prudent parent. Tex. Fam. Code § 264.125(b).

The standard of care of a reasonable and prudent parent means the standard of care that a parent of reasonable judgment, skill, and caution would exercise in addressing the health, safety, and welfare of a child while encouraging the emotional and developmental growth of the child, taking into consideration:

•   The overall health and safety of the child;

•   The child’s age, maturity, and development level;

•   The best interest of the child based on the caregiver’s knowledge of the child;

•   The appropriateness of a proposed activity and any potential risk factors;

•   The behavioral history of the child and the child’s ability to safely participate in a proposed activity;

•   The importance of encouraging the child’s social, emotional, and developmental growth; and

•   The importance of providing the child with the most family-like experience possible. Tex. Fam. Code §264.001(5).

A foster parent, other substitute caregiver, family relative or other designated caregiver, or licensed child placing agency caring for a child in the managing conservatorship of DFPS is not liable for harm caused to the child resulting from the child’s participation in an age-appropriate normalcy activity approved by the caregiver if, in approving the child’s participation in the activity, the caregiver exercised the standard of care of a reasonable and prudent parent. Tex. Fam. Code § 264.114(c).

3. Placement Decisions

Tex. Fam. Code § 264.107 requires DFPS, when making placement decisions, to consult with the child’s caseworker, attorney ad litem, and guardian ad litem and with any court-appointed volunteer advocate for the child, except when making an emergency placement that does not allow time for the required consultations. Tex. Fam. Code § 264.107(e).

4. Child Age 14 or Older

The court must ensure that if the child is 14 years or older, services are in place to assist the child in making the transition from substitute care to independent living if the services are available in the community. Tex. Fam. Code § 263.306(a-1)(4)(G).

5. Texas Juvenile Justice Department (TJJD)

A child committed to the TJJD may attend a Permanency Hearing in person, by telephone, or by videoconference. Tex. Fam. Code § 263.302.

6. Summary of Medical Care

At each hearing under Tex. Fam. Code Chapter 263, the court shall review a summary of medical care provided to the foster child since the last hearing. Tex. Fam. Code § 266.007(a) and (b). The summary must include information regarding:

•   The nature of any emergency medical care provided to the child and the circumstances necessitating emergency medical care, including any injury or acute illness suffered by the child;

•   All medical and mental health treatment that the child is receiving and the child’s progress with the treatment;

•   Any medication prescribed for the child, the condition, diagnosis, and symptoms for which the medication was prescribed, and the child’s progress with the medication;

•   For a child receiving psychotropic medication:

◦   any psychosocial therapies, behavior strategies, or other nonpharmacological interventions that have been provided to the child; and

◦   the dates since the previous hearing of any office visits the child had with the prescribing physician, physician assistant, or advanced practice nurse as required by Tex. Fam. Code § 266.011;

•   The degree to which the child or foster care provider has complied or failed to comply with any plan of medical treatment for the child;

•   Any adverse reaction to or side effects of any medical treatment provided to the child;

•   Any specific medical condition of the child that has been diagnosed or for which tests are being conducted to make a diagnosis;

•   Any activity that the child should avoid or should engage in that might affect the effectiveness of the treatment, including physical activities, other medications, and diet; and

•   Other information required by DFPS rule or by the court. Tex. Fam. Code § 266.007(a).