Understanding the Legal Basics for Youth in DFPS Conservatorship

1. Understanding the Legal Basics for Youth in DFPS Conservatorship Dylan Moench, Children’s Commission October 1, 2019

2. Structure of a CPS Case

3. Legal Stages of a CPS Cases

4. Investigation: CPS Receives a Referral of abuse or neglect of a child

5. Definitions Abuse can be mental, physical, emotional, or sexual and can be the result of action or inaction of the parent or caregiver Neglect can be exposing a child so substantial risk of harm by leaving them in an unsafe situation, failing to provide necessary medical care, failure to provide food, clothing, shelter, exposing the child to sexual abuse or abandoning the child

6. Referrals to CPS • Referrals are anonymous • Can be made online or over the phone • Everyone must report child abuse if they become aware of it, but professionals have a duty to report within 48 hours • A professional may not delegate to or rely on another person to make the report. The reporter is immune from civil or criminal liability unless the report is made in bad faith • The reporter is immune from civil or criminal liability unless the report is made in bad faith • Failure by a professional report is a class A misdemeanor and a graduate to state jail felony

7. CPS Investigation • Prompt and thorough investigation requires for a report of child abuse or neglect allegedly committed by a person responsible for a child's care, custody, or welfare • Must respond immediately to any report of death or serious bodily harm and within 24 for high priority to 72 hours for secondary priority • May visit the child’s home, interview the child, examine the child, and interview the child’s parents • A person cannot interfere with a CPS investigation and a court order them allow CPS into a home or school, to release medical or psychological records • Interference can constitute a crime • CPS must inform the parent or person with custody about the consequences of the investigation and the parent’s rights

8. Legal Options at the End of the Investigation

9. Family Based Safety Services (FBSS) • If the investigation confirms abuse or neglect but the parents are cooperative and children are safe • If concerns can be properly addressed then the case can be resolved without court involvement • If the parents do not make progress then the court can file a petition for intervention

10. Court Order Services (COS) • If the investigation confirms abuse or neglect and the parent/s are uncooperative, but the children are safe in the home or with a relative • Petition must be filed • Parents retain conservatorship • No legal deadline

11. Filing a Petition

12. Removal of Child from the Home • Requires an affidavit by CPS caseworker that states: • there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child's welfare; • there is no time, consistent with the physical health or safety of the child, for a full adversary hearing under Subchapter C; and • reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child

13. Ex Parte Hearing Authorizing Removal

14. Removal Prior to an Ex Parte Hearing • There is no time to obtain a temporary order and: • There is an immediate danger to the physical health or safety of the child • The child has been the victim of sexual abuse or trafficking • The caregiver of the child is currently using a controlled substance and the use constitutes and immediate danger • Person who has possession of the child permitted them to remain on a premises used to manufacture methamphetamine • Ex parte hearing must be held the 1st business day after removal

15. After the Ex Parte Hearing • Temporary orders that can last only 14 days • Request appointment of the attorney ad litem for the child • Request an Adversary Hearing be set within 14 days • Ask the parents for information on relatives placement options

16. Non-emergency Removal Request • DFPS does not take emergency possession of the child • Affidavit still required that states: • reasonable efforts have been made to prevent or eliminate the need to remove the child from the child's home; and • there is a continuing danger to child caused by the person entitled to possession of the child; and • allowing the child to remain in the home would be contrary to the child's welfare • Adversary Hearing must be held within 30 days

17. Adversary Hearing

18. Full Adversary Hearing

19. Adversary Hearing: Outcomes • Parents Can Agree to TMC • Court can Renew and Extend for two weeks • Serve parties who need to be served • Parties can meet with their attorneys • Utilize family conferencing to see if agreement can be reached • Parents can request a Full Adversary Hearing

20. Attendees at the Adversary Hearing • Required attendees • DFPS; • DFPS attorney; • Child’s attorney/guardian ad litem; and • Parent and parent’s attorney if one has already been appointed. • Additional attendees may include: • Family or fictive kin; • Community support; • School staff; or • Therapists, counselors, etc. • Court decides whether child goes home or stays in substitute care.

21. Substitute/Foster Care • If child is placed out of the home, DFPS becomes the legal parent or takes “custody” or “conservatorship” of the child. • Substitute care is meant to be a temporary situation for a child until a permanent living arrangement can be obtained.

22. The Whirlwind of Out-of-Home Care • Removed from home/parents/siblings • May not have had chance to say goodbye • Parents/siblings: Where are they? Are they ok? • Living with strangers • In strange house/room/bed • Different customs/routine • Other children in home • Few or none of your possessions • Little or no time to gather possessions during removal • Often arrive with just a “trash bag” of belongings • Uncertainty about future • Where will I live? • Will I return home? • Where will I go to school?

23. Status Hearing

24. Status Hearing

25. Status Hearing • Service plan for the parents is determined • Service plan gives parent roadmap to reunify with child • Service plan must explain to parents the things they are required to do for the children to come home. • The court must find that the parents have reviewed and understand the plan • Plan must be reasonably tailored to address the family’s needs.

26. Permanency Hearings(before a final order is entered)

27. Permanency Hearings

28. What are Permanency Goals? • Family Reunification • Alternative Family • Relative Kinship Adoption • Relative Kinship Conservatorship • Unrelated Adoption • Unrelated Conservatorship • APPLA • Foster Family DFPS Conservatorship • Other Family DFPS Conservatorship • Independent Living • Community Care

29. Deadlines

30. Initial Deadline: 12 months after TMC granted • If the court does not commence a trial on the merits prior to the deadline the case is automatically dismissed. • Purpose is to achieve permanency for children in a timely fashion and prevent children from languishing in the foster care system indefinitely

31. Extended Deadline • Upon a finding of “Extraordinary Circumstances” the deadline can be extended • one time only • 6 month past the initial deadline

32. Possible Outcomes before the Deadline

33. Final Hearing | Trial

34. Termination of Parental Rights Severs legal relationship between parent and child. Legally frees child for adoption by another person, including relative. Have to prove ground + best interest. Higher degree of proof required. Type of CPS case most likely to be appealed following judgment.

35. After the Final Order

36. Permanency Review after 1 Year Hearing within 60 days if the parental rights are not terminated. If parental rights are terminated, within 90 days. Court continues to review the case every 6 months. At permanency hearings, the court will review the child’s education needs and goals and participation in age-appropriate activities, among other factors. Continues until child’s permanency goal is achieved or child leaves care at age 18

37. Extended Foster Care • Voluntary to remain in care after age 18, up to age 21 if the young adult: • Attends high school or a program leading to a high school diploma or a high school equivalency certificate (GED); • Attends college or other institutions of higher learning; • Participates in a program or activity that promotes or removes barriers to employment; • Is employed for at least 80 hours a month; or • Is incapable of doing any of the above activities due to a documented medical condition.

38. Supervised Independent Living • Placements: • Apartments • Non-College Dorms • College Dorms • Shared Housing • Host Homes • DFPS website: • https://www.dfps.state.tx.us/Child_Protection/Youth_and_Young_Adults/Transitional_Living/Extended_Foster_Care/supervised_independent_living.asp

39. Questions? • Contact Information • Dylan Moench, Children’s Commission, Staff Attorney • Email: dylan.moench@txcourts.gov • Commission Website: http://texaschildrenscommission.gov