5. Final Order

(for non-jury trial)

Prior to Hearing, review court file to determine:

⧠ Notice provided to parties within 45 days of setting for trial. Tex. R. Civ. P. 245

⧠ All parties have been served. Tex. Fam. Code § 102.009

⧠ Legal relief sought by parties properly plead. Tex. Fam. Code § 102.003; Tex. Fam. Code § 102.008

⧠ Ensure compliance with the Indian Child Welfare Act, if applicable. 25 U.S.C. § 1912

At Hearing:

⧠ Recite appearances of all parties present at the hearing.

⧠ Take announcements regarding readiness to proceed to trial.

⧠ Rule on any pending pretrial motions.

⧠ Opening Statements, unless waived.

⧠ Evidence

•   See Grounds for Termination Checklist

•   Best Interest Factors to Consider:

o the desires of the child

o the emotional and physical needs of the child now and in the future

o the emotional and physical danger to the child now and in the future

o the parental abilities of the individuals seeking custody

o the programs available to assist those individuals to promote the best interest of the child

o the plans for the child by these individuals or by the agency seeking custody

o the stability of the home or proposed placement

o the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one

o any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367 (Tex. 1976)

⧠ Closing arguments, unless waived

At the End of the Hearing:

⧠ Determine if evidence meets burden of proof to support pleadings:

•   For Termination of Parental Rights: Clear and Convincing Evidence, specified as to each ground alleged, and as to Best Interest of child. Tex. Fam. Code § 101.007; Tex. Fam. Code § 161.001

•   For Conservatorship: Preponderance of the Evidence. Tex. Fam. Code § 105.005

•   For ICWA: Beyond a Reasonable Doubt. 25 U.S.C. § 1912(f).

⧠ If termination is ordered, appoint a managing conservator (DFPS or other suitable individual). Tex. Fam. Code § 161.207

⧠ If termination is NOT ordered and DFPS is awarded managing conservatorship, find that:

•   Appointment of parent would not be in the child’s best interest because it would significantly impair the child’s physical health or emotional development; and

•   It would not be in the child’s best interest to appoint a relative of the child or another person as the managing conservator. Tex. Fam. Code § 263.404(a)

⧠ If termination is NOT ordered and DFPS is awarded managing conservatorship, consider whether:

•   The child will turn 18 in not less than 3 years;

•   The child is at least 12 years old or has continuously expressed a strong desire against being adopted; and

•   The needs and desires of the child. Tex. Fam. Code § 263.404(b)

⧠ Advise parties of their right to appeal. Tex. Fam. Code § 263.405

⧠ Set Permanency Hearing After Final Order for 90 days if PMC granted to DFPS with termination. Tex. Fam. Code § 263.501(b)

⧠ Set Permanency Hearing After Final Order for no later than 180 days if PMC granted to DFPS without termination. Tex. Fam. Code § 263.501(a)

Best Practices:

⧠ Remind Parent Attorney of appellate duties.

⧠ Set initial placement review hearings sooner than statutorily required to ensure progress toward the child’s permanency goal.