Texas Department of Family and Protective Services, sometimes known as TDFPS or commonly referred to as CPS (“Child Protective Services”), can remove a child from a parent if there is a reasonable belief that there is an immediate danger to the child’s physical health or safety. The removal of a child from a parent’s care should only occur after a complete investigation has been conducted. The investigation begins after a referral is received. Referrals are completely anonymous.
Per the Texas Family Code, the investigation can:
- take place at the child’s school or home
- include interviews of the child and parents; and
- involve medical, psychological or psychiatric evaluation or examination of the child.
There are multiple factors that an investigator will consider when determining if a child must be removed from the care of the parent. Some of those factors are the age and vulnerability of the child, the nature of the allegations, and the level of risk to the child’s physical health or safety of the child is not removed. Each case is unique and determined on an individual basis by the investigator. A few reasons that a child CANNOT be removed are if the parents:
- Homeschooled the child
- Provided or administered low level THC cannabis which the child was prescribed
- Are economically disadvantaged
- Arrested for an offense under Title 5 of the Penal Code, Title 6 of the Penal Code or an offense involving family violence under Section 71.004 of the Texas Family Code
- Refusal to immunize based on reasons of conscience, including religious beliefs
Once the investigator believes that the child must be immediately removed, a petition along with an affidavit must be filed. The affidavit must contain a summary of why the child is at immediate risk or ongoing danger, failure to remove the child would not be in the child’s best interest, there is no time to have a full hearing before the removal, and steps were taken to avoid the need to remove the child from the home. The affidavit is the statement of personal knowledge of the CPS investigator. A judge will review the petition and affidavit in order to determine if the child should be removed from the care of the parent. If the judge determines that the child should be removed from the care of the parent or adult caretaker, the court will issue an emergency order authorizing possession of a child which will be served on the parent or other adult caretaker in possession of the child.
In emergency circumstances, a child can be removed from the parent or adult caretaker without an order. If there is not adequate time to file the petition and supporting affidavit prior to the removal of the child consistent with the safety and welfare of the child, then the petition and affidavit shall be filed no later than the first business day after the child is taken into the possession of CPS. The court must evaluate the removal no later than the first business day after the child is taken into CPS care and if the removal is approved, the court must issue an order to that effect. The hearing can be without the presence of the parties. If there is no hearing within the first business day, the child should be returned to the child’s parent, managing conservator or other adult caretakers.
References: Texas Family Code sections 261.302, 261.406, 262.101, 262.102, 262.104, 262.105, 262.106, 262.107