Texas Child Protection Law Bench Book
August 2015 edition
D. Final Hearing
At the final hearing, the court may either:
• Enter a final decree of conservatorship that returns the child to the parent or caregiver and dismisses DFPS;
• Enter a final decree of conservatorship that gives a relative permanent managing conservatorship, with or without termination of parental rights, and dismisses DFPS; or
• Enter a final decree of conservatorship that names DFPS as the permanent managing conservator, with or without termination of parental rights.
1. Parties
Confirm that all parties have been served pursuant to Tex. Fam. Code § 102.009.
Special Issue: Although the Family Code attempts to provide finality for children by limiting the time for appeals and restricting direct or collateral attacks on a judgment of termination of parental rights, the Texas Legislature has also recognized the countervailing interest of the child’s family. For example, if an order terminating the parent-child relationship is entered without providing an opportunity for participation by an adult sibling of the child, a grandparent of the child, an aunt who is a sister of a parent of the child, or an uncle who is a brother of a parent of the child, that person may, within 90 days after termination of parental rights, file a motion to modify the order changing managing conservatorship from DFPS to the person. Tex. Fam. Code § 102.006(c). An adult sibling of a child who is separated from the child because of the action taken by DFPS may file a motion to modify or an original petition for access to the child without regard to whether the issue of managing conservatorship is an issue in the suit. Tex. Fam. Code § 102.0045 and Tex. Fam. Code § 153.551. The sibling of a child who is separated from the sibling as a result of an action by DFPS may file an original suit as provided by Tex. Fam. Code § 153.551 requesting access to the child, regardless of the age of the sibling. Tex. Fam. Code §102.0045(a-1). The court shall expedite a suit filed under Tex. Fam. Code §102.0045(a-1). |
2. Required Notice of Trial
The court may set contested cases on written request of any party, or on the court’s own motion, with reasonable notice of not less than 45 days to the parties of the first setting for trial, or by agreement of the parties. Tex. R. Civ. P. 245.
3. Burden of Proof at Final Hearing
DFPS has the burden to show that parental rights should be terminated or that DFPS or another non-parent should be appointed the permanent managing conservator of the child.
a. Termination
In a termination suit, DFPS has the burden to present clear and convincing evidence of at least one ground for termination and that termination is in the best interest of the child pursuant to Tex. Fam. Code § 161.001. Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam. Code § 101.007.
The Due Process Clause of the 14th Amendment requires the State to support the parental unfitness finding in a termination case by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 760 (1982); In re G.M., 596 S.W.2d 846 (Tex. 1980).
b. Conservatorship
When DFPS asks a court to grant conservatorship to DFPS or to an individual other than the parent, the burden of proof is a preponderance of the evidence, not clear and convincing. A parent may also seek to have conservatorship awarded to an individual of his or her choice, and the burden of proof for the parent would also be a preponderance of the evidence that conservatorship to that individual is in the best interest of the child. Tex. Fam. Code § 105.005.
c. Indian Child Welfare Act (ICWA)
If ICWA applies, the burden of proof and standards for a final order seeking permanent managing conservatorship or termination of parental rights are different than under the Texas Family Code. In summary, if ICWA applies the evidence required to terminate parental rights is beyond a reasonable doubt, supported by qualified expert testimony that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and active efforts to provide remedial and rehabilitative services to prevent the breakup of the Indian family were made but proved unsuccessful. 25 U.S.C. §1912(d) and 25 U.S.C. §1912(f).
4. Grounds for Termination of Parental Rights
a. Personal Service Required unless Prongs Met Under Tex. Fam. Code § 161.208
If a parent of the child has not been personally served in a suit in which DFPS seeks termination, the court that terminates a parent-child relationship may not appoint DFPS as permanent managing conservator of the child unless the court determines that:
• DFPS has made a diligent effort to locate a missing person who has not been personally served and a relative of that parent; and
• A relative located by DFPS has had a reasonable opportunity to request appointment as a managing conservator of the child or DFPS has not been able to locate the missing parent or a relative of the missing parent. Tex. Fam. Code § 161.208.
b. Involuntary Termination of Parent-Child Relationship
New legislation passed in 2015 adds a definition and makes changes to Tex. Fam. Code § 161.001 regarding involuntary termination of parental rights.
Pursuant to new Tex. Fam. Code § 161.001(a), “born addicted to alcohol or a controlled substance” means a child:
• Who is born to a mother who during the pregnancy used a controlled substance, as defined by Tex. Health & Safety Code Chapter 481, other than a controlled substance legally obtained by prescription, or alcohol; and
• Who, after birth as a result of the mother’s use of the controlled substance or alcohol:
◦ experiences observable withdrawal from the alcohol or controlled substance;
◦ exhibits observable or harmful effects in the child’s physical appearance or functioning; or
◦ exhibits the demonstrable presence of alcohol or a controlled substance in the child’s bodily fluids. Tex. Fam. Code § 161.001(a).
Tex. Fam. Code § 161.001(b) now provides the list of grounds for involuntary termination of parental rights. The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
• The parent has:
◦ voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return;
◦ voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;
◦ voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;
◦ knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
◦ engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
◦ failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition;
◦ abandoned the child without identifying the child or furnishing means of identification, and the child's identity cannot be ascertained by the exercise of reasonable diligence;
◦ voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth;
◦ contumaciously refused to submit to a reasonable and lawful order of a court under Tex. Fam. Code Chapter 261, Subchapter D;
◦ been the major cause of:
▪ the failure of the child to be enrolled in school as required by the Education Code; or
▪ the child's absence from the child's home without the consent of the parents or guardian for a substantial length of time or without the intent to return;
◦ executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Tex. Fam. Code § 161.103;
◦ been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code, or under a law of another jurisdiction that contains elements that are substantially similar to the elements of an offense under one of the following Penal Code sections, or adjudicated under Tex. Fam. Code Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:
▪ Tex. Penal Code § 19.02 (murder);
▪ Tex. Penal Code § 19.03 (capital murder);
▪ Tex. Penal Code § 19.04 (manslaughter);
▪ Tex. Penal Code § 21.11 (indecency with a child);
▪ Tex. Penal Code §22.01 (assault);
▪ Tex. Penal Code § 22.011 (sexual assault);
▪ Tex. Penal Code §22.02 (aggravated assault);
▪ Tex. Penal Code § 22.021 (aggravated sexual assault);
▪ Tex. Penal Code § 22.04 (injury to a child, elderly individual, or disabled individual);
▪ Tex. Penal Code § 22.041 (abandoning or endangering child);
▪ Tex. Penal Code §25.02 (prohibited sexual conduct);
▪ Tex. Penal Code § 43.25 (sexual performance by a child);
▪ Tex. Penal Code § 43.26 (possession or promotion of child pornography);
▪ Tex. Penal Code § 21.02 (continuous sexual abuse of young child or children);
▪ Tex. Penal Code § 20A.02(a)(7) or (8) (trafficking of persons); and
▪ Tex. Penal Code § 43.05(a)(2) (compelling prostitution);
◦ had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Tex. Fam. Code § 161.001(b)(1)(D) or (E) or substantially equivalent provisions of the law of another state;
◦ constructively abandoned the child who has been in the permanent or temporary managing conservatorship of DFPS for not less than six months, and:
▪ DFPS has made reasonable efforts to return the child to the parent;
▪ the parent has not regularly visited or maintained significant contact with the child; and
▪ the parent has demonstrated an inability to provide the child with a safe environment;
◦ failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of DFPS for not less than nine months as a result of the child's removal from the parent under Tex. Fam. Code Chapter 262 for the abuse or neglect of the child;
◦ used a controlled substance, as defined by Tex. Health & Safety Code Chapter 481, in a manner that endangered the health or safety of the child, and:
▪ failed to complete a court-ordered substance abuse treatment program; or
▪ after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;
◦ knowingly engaged in criminal conduct that has resulted in the parent's:
▪ conviction of an offense; and
▪ confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition;
◦ been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription;
◦ voluntarily delivered the child to a designated emergency infant care provider under Tex. Fam. Code § 262.302 without expressing an intent to return for the child; or
◦ been convicted of:
▪ the murder of the other parent of the child under Tex. Penal Code § 19.02 or Tex. Penal Code § 19.03, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Tex. Penal Code § 19.02 or Tex. Penal Code § 19.03;
▪ criminal attempt under Tex. Penal Code § 15.01, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Tex. Penal Code § 15.01, to commit the offense described by Tex. Fam. Code § 161.001(b)(1)(T)(i); or
▪ criminal solicitation under Tex. Penal Code § 15.03, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Tex. Penal Code § 15.03, of the offense described by Tex. Fam. Code § 161.001(b)(1)(T)(i); and
• That termination is in the best interest of the child. Tex. Fam. Code § 161.001(b).
c. Involuntary Termination: Inability to Care for Child
The Texas Family Code authorizes the termination of the parental rights of a parent who is unable to meet the child’s needs due to a mental disability. The court may order termination of the parent-child relationship in a suit filed by DFPS if the court finds that:
• The parent has a mental or emotional illness or a mental deficiency that renders the parent unable to provide for the physical, emotional, and mental needs of the child;
• The illness or deficiency, in all reasonable probability, provided by clear and convincing evidence, will continue to render the parent unable to provide for the child’s needs until the 18th birthday of the child;
• DFPS has been the temporary or sole managing conservator of the child of the parent for at least 6 months preceding the date of the hearing on termination held in accordance with Tex. Fam. Code § 161.003(c);
• DFPS made reasonable efforts to return the child to the parent; and
• Termination is in the best interest of the child. Tex. Fam. Code § 161.003(a).
Immediately after filing a suit under Tex. Fam. Code § 161.003, the court shall appoint an attorney ad litem to represent the interests of the parent against whom the suit is brought. Tex. Fam. Code § 161.003(b). An attorney appointed under Tex. Fam. Code § 161.003(b) shall represent the parent for the duration of the suit unless the parent, with the permission of the court, retains another attorney. Tex. Fam. Code § 161.003(d).
A hearing on the termination may not be held earlier than 180 days after the date on which the suit is filed. Tex. Fam. Code § 161.003(c).
d. Termination of the Rights of an Alleged Biological Father
Except as otherwise provided by Tex. Fam. Code § 161.002, the procedural and substantive standards for termination of parental rights apply to the termination of the rights of an alleged father. Tex. Fam. Code § 161.002(a).
The rights of an alleged biological father may be terminated if:
• After being served with citation, he does not respond by timely filing an admission of paternity or a counterclaim for paternity under Tex. Fam. Code Chapter 160;
• The child is over one year of age at the time the petition for termination of the parent-child relationship or for adoption is filed, he has not registered with the paternity registry under Tex. Fam. Code Chapter 160, and after the exercise of due diligence by the petitioner:
◦ his identity and location are unknown; or
◦ his identity is known but he cannot be located;
• The child is under one year of age at the time the petition for termination of the parent-child relationship or for adoption is filed and he has not registered with the paternity registry under Tex. Fam. Code Chapter 160; or
• He has registered with the paternity registry under Tex. Fam. Code Chapter 160, but the petitioner’s attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite the due diligence of the petitioner. Tex. Fam. Code § 161.002(b).
The termination of the rights of an alleged father under Tex. Fam. Code § 161.002(b)(2) or Tex. Fam. Code § 161.002(b)(3) does not require personal service of citation or citation by publication on the alleged father, and there is no requirement to identify or locate an alleged father who has not registered with the paternity registry under Tex. Fam. Code Chapter 160. Tex. Fam. Code § 161.002(c-1).
The termination of rights of an alleged father under Tex. Fam. Code § 161.002(b)(4) does not require service of citation by publication on the alleged father. Tex. Fam. Code § 161.002(d).
The court shall not render an order terminating parental rights under Tex. Fam. Code § 161.002(b)(2) or Tex. Fam. Code § 161.002(b)(3) unless the court receives evidence of a certificate of the results of a search of the paternity registry under Tex. Fam. Code Chapter 160 from the vital statistics unit indicating that no man has registered the intent to claim paternity. Tex. Fam. Code § 161.002(e).
The court shall not render an ordering terminating parental rights under Tex. Fam. Code § 161.002(b)(4) unless the court, after reviewing the petitioner’s sworn affidavit describing the petitioner’s effort to obtain personal service of citation on the alleged father and considering any evidence submitted by the attorney ad litem for the alleged father, has found that the petitioner exercised due diligence in attempting to obtain service on the alleged father. The order shall contain specific findings regarding the exercise of due diligence of the petitioner. Tex. Fam. Code § 161.002(f).
5. Best Interest
Holley v. Adams, 544 S.W.2d 367, 373 (Tex. 1976) factors used to evaluate the evidence relating to best interest include but are not limited to:
• The desires of the child;
• The emotional and physical needs of the child now and in the future;
• The emotional and physical danger to the child now and in the future;
• The parenting abilities of the parties seeking custody;
• The programs available to assist these persons;
• The plans for the child by the parties seeking custody;
• The acts or omissions of the parent and any excuse for the same; and
• The stability of the home or proposed placement.
"The absence of evidence about some of these Holley considerations would not preclude a fact finder from reasonably forming a strong conviction or belief that termination is in the child’s best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child. Other cases, however, will present more complex facts in which paltry evidence relevant to each consideration mentioned in Holley would not suffice to uphold the jury’s finding that termination is required." In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
"Evidence about placement plans and adoption are, of course, relevant to best interest. However, the lack of evidence about definitive plans for permanent placement and adoption cannot be the dispositive factor; otherwise, determinations regarding best interest would regularly be subject to reversal on the sole ground that an adoptive family has yet to be located. Instead, the inquiry is whether, on the entire record, a fact finder could reasonably form a firm conviction or belief that termination of the parent’s rights would be in the child’s best interest—even if the agency is unable to identify with precision the child’s future home environment." In re C.H., 89 S.W.3d 17, 32 (Tex. 2002).
6. Presumptions Involved in Conservatorship
a. Parent Should Be Appointed as Managing Conservator
Unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. It is a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption. Tex. Fam. Code § 153.131(b).
b. Parent With History of Domestic Violence of Sexual Abuse
In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. Tex. Fam. Code § 153.004(a).
c. Parent Should Be Appointed as Possessory Conservator
The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the child. Tex. Fam. Code § 153.191.
The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator. Tex. Fam. Code § 153.004(c).
The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that:
• There is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit; or
• The parent engaged in conduct that constitutes an offense under Tex. Penal Code § 21.02, Tex. Penal Code § 22.011, Tex. Penal Code § 22.021, or Tex. Penal Code § 25.02, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child. Tex. Fam. Code § 153.004(d)(2).
Notwithstanding Tex. Fam. Code § 153.004(d), a court may allow a parent to have access to a child if the court makes one of several findings pursuant to Tex. Fam. Code § 153.004(d-1).
If the court enters an order appointing DFPS as the permanent managing conservator of the child without terminating the rights of the parent of the child, the court must find that:
• Appointment of a parent as managing conservator would not be in the best interest of the child because the appointment 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).
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Special Issue: Although not law, some judges do not simply dismiss or nonsuit the DFPS legal case outright, but rather enter final orders regarding conservatorship of the child, child support, and access to the child. If DFPS requests dismissal of its lawsuit after reunification with a parent, the court may want to consider whether: • The dismissal or nonsuit is in the best interest of each child affected by the suit; and • Any orders for the conservatorship, possession of or access to, or support of each child affected by the suit continue in effect after the dismissal or nonsuit. |
7. Considerations in Naming DFPS as Permanent Managing Conservator
If the court determines that DFPS should be named as permanent managing conservator of the child without terminating the rights of a parent of the child, the court shall take the following factors into consideration:
• The child will reach 18 years of age in not less than three years;
• The child is 12 years or older and has expressed a strong desire against termination or has continuously expressed a strong desire against being adopted; and
• The needs and desires of the child. Tex. Fam. Code § 263.404(b).
8. Final Order Appointing DFPS as Managing Conservator of Certain Abandoned Children (Baby Moses Law)
There is a rebuttable presumption that a parent who delivers a child to a designated emergency infant care provider in accordance with Tex. Fam. Code Subchapter D, Chapter 262:
• Is the child’s biological parent;
• Intends to relinquish parental rights and consents to the termination of parental rights with regard to the child; and
• Intends to waive the right to notice of the suit terminating the parent-child relationship. Tex. Fam. Code § 263.407(a).
A party that seeks to rebut a presumption in Tex. Fam. Code § 263.407(a) may do so at any time before the parent-child relationship is terminated with regard to the child. Tex. Fam. Code § 263.407(a-1).
If a person claims to be the parent of a child taken into possession under Tex. Fam. Code Chapter 262, Subchapter D [Emergency Possession of Certain Abandoned Children], before the court renders a final order terminating the parental rights of the child’s parents, the court shall order genetic testing for parentage determination unless parentage has previously been established. The court shall hold the petition for termination of the parent-child relationship in abeyance for a period not to exceed 60 days pending the results of the genetic testing. Tex. Fam. Code § 263.407(b).
Before the court may render an order terminating parental rights with regard to a child taken into DFPS custody under Tex. Fam. Code § 262.303, DFPS must:
• Verify with the National Crime Information Center and state and local law enforcement agencies that the child is not a missing child; and
• Obtain a certificate of the search of the paternity registry under Tex. Fam. Code Chapter 160, Subchapter E not earlier than the date DFPS estimates to be the 30th day after the child’s date of birth. Tex. Fam. Code § 263.407(c).
9. Requirements for Appointment of Nonparent as Managing Conservator
Tex. Fam. Code § 263.408, enacted in 2015, imposes additional duties on DFPS when a nonparent is appointed as managing conservator of a child in the legal custody of DFPS.
In a suit in which the court appoints a nonparent as managing conservator of a child, DFPS must provide the nonparent with an explanation of the difference between appointment as a managing conservator of a child and adoption of a child, including specific statements informing the nonparent that:
• The nonparent’s appointment conveys only the rights specified by the court order or applicable laws instead of the complete rights of a parent conveyed by adoption;
• A parent may be entitled to request visitation with the child or petition the court to appoint the parent as the child’s managing conservator, notwithstanding the nonparent’s appointment as managing conservator; and
• The nonparent’s appointment as the child’s managing conservator will not result in the eligibility of the nonparent and child for post-adoption benefits. Tex. Fam. Code § 263.408(a)(1).
In addition to the rights and duties provided under Tex. Fam. Code § 153.371, the court order appointing the nonparent as managing conservator must include provisions that address the authority of the nonparent to:
• Authorize immunization of the child or any other medical treatment that requires parental consent;
• Obtain and maintain health insurance coverage for the child and automobile insurance for the child, if appropriate;
• Enroll the child in a day-care program or school, including kindergarten;
• Authorize the child to participate in school-related or extracurricular or social activities, including athletic activities;
• Authorize the child to obtain a learner’s permit, driver’s license, or state-issued identification card;
• Authorize employment of the child;
• Apply for and receive public benefits for or on behalf of the child; and
• Obtain legal services for the child and execute contracts or other legal documents for the child. Tex. Fam. Code § 263.408(a)(2).
The court must require evidence that the nonparent was informed of the rights and duties of a nonparent appointed as managing conservator of a child before the court renders an order appointing the nonparent as managing conservator of a child. Tex. Fam. Code § 263.408(b).