Texas Child Protection Law Bench Book

2023 version: As effective November 1, 2023

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 Once consent is given, the consent may be limited, qualified, or withdrawn.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).

Special Issue: Upon first contact with a parent or alleged perpetrator, the DFPS investigator must provide them with a written summary that includes an explanation that any statement or admission made by the person to anyone may be used against the person in a criminal case, as a basis to remove the child, or as a basis to terminate the person's relationship with the child.

The summary must also include known allegations under investigation and the investigator must verbally notify the person of their right to:

•   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.

DFPS must document that verbal notice was provided to the person and DFPS must adopt a form to document that the person received the written and oral summary and provide a signed copy to the person's attorney, if represented.

If the person does not receive the verbal notification and written summary, any information obtained from the person, and any other information that would not have been discovered without that information, is not admissible for use against the person in any civil proceeding.

Additionally, a DFPS investigator must notify the parent that they have the right to make an audio recording of the interview, that the recording is subject to subpoena, and that the parent may request a copy of DFPS recording policy. Tex. Fam. Code § 261.3027. The investigator must also inform the parent in writing before conducting the interview that the parent may request an administrative review of DFPS findings, and the parent shall sign an acknowledgement of receipt. Tex. Fam. Code § 261.3091.