H. Relinquishing Custody of Child to Obtain Certain Services

During the last two legislative sessions, several changes were made to the Texas Family Code regarding circumstances in which a parent relinquishes custody of a child in order for the child to receive mental health services.

The Texas Family Code now requires DFPS to make rules that prohibit the agency from making a finding of abuse or neglect against a parent 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. Severe Emotional Disturbance Defined

A subsection was added to Tex. Fam. Code § 261.001 to define “severe emotional disturbance” as a “mental, behavioral, or emotional disorder of sufficient duration to result in functional impairment that substantially interferes with or limits a person’s role or ability to function in family, school, or community activities.” Tex. Fam. Code § 261.001(9).

2. Option of Joint Managing Conservatorship Between Parent and DFPS

Before DFPS files a suit affecting the parent-child relationship requesting managing conservatorship of a child who suffers from a severe emotional disturbance to obtain mental health services for the child, DFPS must, unless it is not in the best interest of the child, discuss with the child’s parent or legal guardian the option of seeking a court order for joint managing conservatorship of the child with DFPS. Tex. Fam. Code § 262.352.