Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

D. DFPS Response to Substance Use Disorders

The Child Abuse Prevention and Treatment Act (CAPTA) (P.L. 93-247) was originally enacted in 1974, was last reauthorized in 2010, and amended most recently in 2019; additionally, certain provisions were amended by the Comprehensive Addiction and Recovery Act (CARA) of 2016 and the Victims of Child Abuse Act Reauthorization Act of 2018 (P.L. 115-424).^[166]

Under these federal laws, states are required to have plans of safe care for infants born and identified as being affected by substance use or withdrawal symptoms of both legal and illegal substances. The plans of safe care are required to “ensure the safety and well-being of such infant following [the infant's] release from the care of healthcare providers” to be achieved through “addressing the health and substance use disorder treatment needs of the infant and affected family or caregiver.” 42 U.S.C.S. § 5106a(b)(1)-(2).

To avoid confusion, DFPS does not utilize the unique federal term “plan of safe care” as set forth in CARA, as there are a number of DFPS tools and policies that reference “plans.” Statewide Intake protocols, safety and risk assessment tools, and the service planning process used in different stages of service, collectively mean that the state meets the requirements under the CARA plans of safe care.

Examples of types of plans that do not include removal include: use of Parental Child Safety Placements (PCSP) to assure safety as the parent initiates or becomes engaged in services; use of residential substance use disorder treatment programs that allow a mother (or father in a few programs) to live in a treatment setting with the child, when appropriate; use of Medication-Assisted Treatment in combination with behavioral therapies; and the guidance of specialized drug courts in some areas. While access to treatment can be challenging, families referred by DFPS are considered a state priority population for state-funded substance use intervention and treatment services. In Texas, a client who is not pregnant and is referred to an HHSC-funded substance use intervention or treatment service by DFPS must be admitted to services within 72 hours or 3 business days, depending on the program or services.

DFPS currently has a grant through the Family First Prevention Services Act (FFPSA) that allows children in DFPS conservatorship to be placed with their mothers in one of three contracted residential substance use treatment facilities. This program allows children to be placed on a monitored return with their mothers in these facilities while the mothers receive residential treatment services while also allowing the facilities to receive reimbursement for the room and board of the children. The goal of this program is to enable reunification of children with their mothers when the primary barrier for reunification is the mother's need for residential substance use treatment.

Doctors and nurses are required by mandatory reporting laws to report suspected child abuse and neglect if they have reasonable cause to believe the child has been abused as defined by statute. Tex. Fam. Code § 261.101(b). Definitions of child abuse in Texas law include the current use of controlled substances by an adult in a manner or to the extent that the use results in physical, mental, or emotional injury to a child. Tex. Fam. Code § 261.001(1)(I).

DFPS Statewide Intake advances any reports of substance-exposed infants to the field for an investigation. During the investigation, multiple steps occur including: a child assessment, parental assessment, holistic family assessment, safety planning, and the development of initial services. In some cases, the parent has sufficient support and is protective and/or engaged in treatment services, thereby eliminating the need for further DFPS involvement beyond investigation. Other parents may be assisted in development of a plan and access to services during the investigation stage of services, or a Family-Based Safety Services (FBSS) stage may be opened to provide ongoing services without removal. Where safety cannot be assured, DFPS will seek removal of the infant.

3. Behavioral Health Division at DFPS

DFPS has a Behavioral Health Services Division within CPS, with Behavioral Health and Substance Use Disorder spread throughout the state. The division is part of a broader CPS Medical Services Division that supports staff meeting medical, behavioral health, and dental needs for children in DFPS conservatorship. The combined Medical and Behavioral Health teams assist legacy and SSCC direct delivery staff with access to Medicaid services (STAR Health) and other public behavioral health services available to children and families. The broader team includes the DFPS Medical Director, Well-Being Specialists, Nurse Consultants and supporting staff. These positions complement two additional Substance Use Program Specialists and two Mental Health Program Specialists who report to Child Protective Investigations. The combined team works together to overcome barriers to services, and provide support, resources, and technical assistance to direct delivery staff in their work with families and youth through every stage of service.