Texas Child Protection Law Bench Book

August 2015 edition

6. Final Order

(for non-jury trial)

Prior to Final Hearing:

⧠ Notice provided to parties within 45 days of trial

⧠ All parties served

⧠ Legal relief properly plead

⧠ Compliance with Indian Child Welfare Act, if applicable

At Hearing:

⧠ Note appearances of all parties present

⧠ Take announcements about readiness to proceed to trial

⧠ Rule on any pending pretrial motions

⧠ Opening Statements, unless waived

⧠ Presentation of evidence

⧠ Closing arguments, unless waived

⧠ Evidence

•   Grounds for termination

•   Holley v. Adams Best Interest:

o desires of the child

o emotional and physical needs of child now and in future

o emotional and physical danger to child now and in future

o parental abilities of individuals seeking custody

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

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

o stability of home or proposed placement

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

o any excuse for acts or omissions of the parent

At the End of the Hearing:

⧠ Determine if met burden of proof:

•   Termination of Parental Rights: Clear and Convincing Evidence

•   If ICWA applies: Beyond a Reasonable Doubt

•   Conservatorship: Preponderance of the Evidence

⧠ If termination, appoint DFPS or individual as managing conservator (MC)

⧠ If no termination and DFPS awarded MC, find that:

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

•   Not in child’s best interest to appoint relative of child or another person as managing conservator

⧠ If no termination and DFPS awarded MC, 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

•   Needs and desires of child

⧠ Advise parties of right to appeal

⧠ Set Permanency Hearing After Final Order (PHAFO) within 90 days if MC granted to DFPS with termination

⧠ Set PHAFO within 180 days if MC granted to DFPS without termination

Best Practices:

⧠ Remind Parent Attorney of appellate duties

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