B. Notice
DFPS is responsible for providing service of citation and notice of several matters relating to agency activities relating to a lawsuit (investigations, removals, review hearings, etc.). While the same word “notice” is often used for both, it is important to distinguish between service and notice. The Texas Family Code requires that DFPS provide notice to parents of the investigation and removal of a child, as well as notice to relatives of the removal, and notice to parties, relatives, caregivers, and child if age 10 or older, of all review hearings. These notice obligations, however, do not need to be executed in accordance with the rules governing service under the Texas Rules of Civil Procedure. Tex. Fam. Code § 263.0021 provides several methods of notice available to DFPS.
Special Issue: Service of citation is required upon the filing of an original petition to give named parties notice of the suit. DFPS should include notice of any upcoming scheduled hearings, such as the adversary hearing, with the citation to comply with the requirement that all persons entitled be given 10 days' notice of a hearing. Tex. Fam. Code § 263.0021(b). In addition to giving notice of a hearing along with service of citation, notice may be given in a temporary order following a full adversary hearing, in an order following a hearing under Tex. Fam. Code Chapter 263, in open court, or in any manner that would provide actual notice to a person entitled to notice. Tex. Fam. Code § 263.0021(c).
1. The Right to Notice
The Petitioner, which is usually DFPS, must ensure that notice of the lawsuit is provided to those who are sued.
2. Methods of Providing Notice of Hearing
The requirements for citation are different from requirements for notice of motions or of particular hearings. Citation generally must be by personal service on the Respondent unless citation is waived by the Respondent, forfeited under the “paternity registry” process, or given by some form of substituted service, including citation by publication, as authorized by the Texas Rules of Civil Procedure.
Once citation is complete and a return of service is on file, notice may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case may be, electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager or in person, by mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.
Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. Service by telephonic document transfer after 5:00 p.m. local time of the recipient shall be deemed served on the following day. Notice may also be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other person competent to testify. Tex. R. Civ. P. 21a.
3. Information Provided to Relatives and Certain Individuals; Investigation
When DFPS takes possession of a child under Tex. Fam. Code Chapter 262, DFPS shall provide information to each adult DFPS is able to identify and locate who:
• Is related to the child within the fourth degree of consanguinity, as defined under Tex. Gov't Code Chapter 573;
• Is an adult relative of the alleged father if DFPS has a reasonable basis to believe the alleged father is the child's biological father; or
• Anyone who is identified as a potential relative or designated caregiver on the proposed Child Placement Resources Form. Tex. Fam. Code § 262.1095(a)(1).
DFPS may provide information to each adult DFPS is able to identify and locate who has a long-standing and significant relationship with the child. Tex. Fam. Code § 262.1095(a)(2).
The written notice must include:
• A statement that the child is in the state's custody;
• Options available for participation in the care and placement and support of the family;
• Options that may be lost if the individual fails to timely respond;
• The date, time, and location of a Hearing under Tex. Fam. Code Chapter 263, if applicable; and
• Information regarding the procedures and timeline for a suit affecting the parent-child relationship under Tex. Fam. Code Chapter 262. Tex. Fam. Code § 262.1095(b).
DFPS is not required to provide information to a person who has criminal or family violence history. Tex. Fam. Code § 262.1095(c).
DFPS must use due diligence to identify and locate all individuals described by Tex. Fam. Code § 262.1095(a) within 30 days of the date DFPS files the SAPCR. In order to identify and locate individuals, DFPS shall seek information from each parent, relative, alleged father of the child, and the child in an age-appropriate manner. Tex. Fam. Code § 262.1095(d). The failure of a parent or alleged father to complete the Child Placement Resources Form does not relieve DFPS of its duty to seek information about persons under Tex. Fam. Code § 262.1095(d). Tex. Fam. Code § 262.1095(e).
4. Report Regarding Notification of Relatives
Tex. Fam. Code § 263.007 requires DFPS to provide the court with a report regarding their compliance with Tex. Fam. Code § 262.1095. The court should review this report to assess DFPS' diligent efforts. Tex. Fam. Code § 263.007.
5. Notice to Parents of Right to Counsel
Before commencement of the full Adversary Hearing, if an attorney has not already been appointed under Tex. Fam. Code § 107.013, the court must inform each parent not represented by an attorney of:
• The right to be represented by an attorney; and
• If a parent is indigent and appears in opposition to the suit, the right to a court-appointed attorney. Tex. Fam. Code § 262.201(c).
Tex. Fam. Code § 107.0141 allows the court to appoint an attorney for a parent whenever the SAPCR is filed, but if a parent's first appearance is at the Adversary Hearing and the parent requests the appointment of an attorney, then the court shall require the parent to complete and file with the court an affidavit of indigence. The court may consider additional evidence to determine whether the parent is indigent, including evidence relating to the parent's income, source of income, assets, property ownership, benefits paid in accordance with a federal, state, or local public assistance program, outstanding obligations, and necessary expenses and the number and ages of the parent's dependents. If the appointment of an attorney for the parent is requested, the court shall make a determination of indigence before commencement of the full Adversary Hearing. If the court determines the parent is indigent, the court shall appoint an attorney to represent the parent. Tex. Fam. Code § 262.201(d).
6. Foreign Consulates
When DFPS takes possession of a child who was born in another country who is not a U.S. citizen, DFPS must notice the foreign consul of the country of which the child is a citizen. See CPS Policy Handbook § 6715 Working with the Foreign Consulate.[39]
To notify a foreign consulate that DFPS has removed a child, the caseworker must:
• Complete Form 2650, Letter to Foreign Consulates;
• Send the completed form to the designated consulate by mail, return receipt requested, or by fax and include the confirmation notice when filing it with the court; and
• Send a copy of the notice to the attorney representing DFPS.
Caseworkers should contact the DFPS Immigration Specialist for consular office contact information. CPS Policy Handbook § 6715.1 Giving Notice to a Foreign Consulate.[40]