C. Emergency Removal with a Court Order
1. Filing a Petition Before Taking Possession of a Child
An original suit filed by a governmental entity requesting permission to take possession of a child without prior notice and a hearing must be supported by a sworn affidavit of a person with personal knowledge stating facts sufficient to satisfy a person with ordinary prudence and caution that:
• There is an immediate danger to the child's physical health or safety or the child has been the 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;
• The child could not be adequately protected by a kick-out order of the perpetrator under Tex. Fam. Code § 262.1015 or Tex. Fam. Code § 262.1016.
• The placement with a relative or designated caregiver under a Parental Child Safety Placement (PCSP) was:
◦ offered but refused;
◦ was not possible because there was no time, consistent with the physical health or safety of the child and the nature of the emergency, to conduct the caregiver evaluation; or
◦ would pose an immediate danger to the child; 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. Tex. Fam. Code § 262.101(a).
The affidavit must describe with specificity in a separate section all reasonable efforts made to prevent or eliminate removal or return the child home. Tex. Fam. Code § 262.101(b).
2. Emergency Order Authorizing Possession of a Child Prior to Removal
Before a court may, without prior notice and a hearing, issue a temporary order for the conservatorship of a child under Tex. Fam. Code § 105.001(a)(1) or a temporary restraining order or attachment of a child authorizing a governmental entity to take possession of a child, the court must find that:
• There is an immediate danger to the physical health or safety of the child or the child has been the victim of neglect or sexual abuse;
• 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 and the nature of the emergency, for a full Adversary Hearing;
• The child could not be adequately protected by a kick-out order of the perpetrator under Tex. Fam. Code § 262.1015 or Tex. Fam. Code § 262.1016.
• The placement with a relative or designated caregiver under a PCSP was:
◦ offered but refused;
◦ was not possible because there was no time, consistent with the physical health or safety of the child and the nature of the emergency, to conduct the caregiver evaluation; or
◦ would pose an immediate danger to the child; and
• Reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child. Tex. Fam. Code § 262.102(a).
The emergency removal order must describe with specificity in a separate section all reasonable efforts made to prevent or eliminate removal or return the child home. Tex. Fam. Code § 262.102(e).
In determining whether there is an immediate danger to the physical health or safety of a child, the court may consider whether the child's household includes a person who has:
• Abused or neglected another child in a manner that causes serious injury to or the death of the other child; or
• Sexually abused another child. Tex. Fam. Code § 262.102(b).
The court may not order an emergency removal based solely on the medical opinion of a doctor under contract with DFPS who has not examined the child. Tex. Fam. Code § 262.102(b-1).
The court shall render a temporary order under Tex. Fam. Code Title 4 for the protection of the child if the court finds that, based on the recommendation of or request by DFPS:
• Child abuse or neglect has occurred; and
• The child requires protection from family violence by a member of the child's family or household. Tex. Fam. Code § 262.102(c).
3. Removal of Alleged Perpetrator of Physical/Sexual Abuse
If DFPS determines after an investigation that child abuse has occurred and that the child would be protected in the child's home by the removal of the alleged perpetrator of the abuse, DFPS shall file a petition for the removal of the alleged perpetrator from the residence rather than attempt to remove the child from the residence. Tex. Fam. Code § 262.1015(a).
Notwithstanding Tex. Fam. Code § 262.1015(a), if DFPS determines that a protective order under Tex. Fam. Code Title 4 provides a reasonable alternative to obtaining an order under Tex. Fam. Code § 262.1015(a), DFPS may file an application for a protective order on behalf of the child instead of or in addition to obtaining a temporary restraining order or can assist the parent or other adult with whom the child resides in obtaining a protective order. Tex. Fam. Code § 262.1015(a-1). For more information, see the Alternatives to Removal chapter of this Bench Book.
A court has the authority to issue a temporary restraining order for the removal of an alleged perpetrator if the DFPS petition states facts sufficient to satisfy the court that:
• There is immediate danger to the physical health or safety of the child or the child has been the victim of sexual abuse;
• There is no time, consistent with the physical health or safety of the child, for an Adversary Hearing;
• The child is not in danger of abuse from a parent or other adult with whom the child will continue to reside in the residence of the child;
• The parent or other adult with whom the child will continue to reside in the child's home is likely to make reasonable efforts to monitor the residence and report to DFPS and appropriate law enforcement any attempt by the alleged perpetrator to return to the residence; and
• The issuance of the order is in the best interest of the child. Tex. Fam. Code § 262.1015(b).
The temporary restraining order:
• Is to be served on the alleged perpetrator as well as the adult with whom the child will continue to reside. Tex. Fam. Code § 262.1015(c).
• Expires not later than the 14th day after the order was rendered, unless the court grants an extension under Tex. Fam. Code § 262.201(a-5), (e), or (e-1). Tex. Fam. Code § 262.1015(d).
• Requires that the other adult with whom the child will continue to reside make a reasonable effort to monitor the residence and report to DFPS and the appropriate law enforcement agency any attempt by the alleged perpetrator to return to the residence. Tex. Fam. Code § 262.1015(e).
The court shall order the removal of an alleged perpetrator if the court finds that the child is not in danger of abuse from a parent or other adult with whom the child will continue to reside in the child's residence and that:
• The presence of the alleged perpetrator in the child's residence constitutes a continuing danger to the physical health or safety of the child; or
• The child has been the victim of sexual abuse and there is a substantial risk that the child will be the victim of sexual abuse in the future if the alleged perpetrator remains in the residence. Tex. Fam. Code § 262.1015(f).
Removal of an alleged perpetrator from the child's home was cited by the Supreme Court of Texas as a means of protecting a child, short of separating the child from the parents and placing the child in foster care. See In re Tex. Dep't of Family and Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008, orig. proceeding).
4. Failure to Report Perpetrator's Return
A person commits an offense if the person is a parent or other person with whom a child resides, the person is served with an order, and the person fails to make a reasonable effort to monitor the residence of the child or to report to DFPS and the appropriate law enforcement agency an attempt by the alleged perpetrator to return to the residence. An offense under this section is a Class A misdemeanor. Tex. Fam. Code § 262.1015(g).
5. Criminal Offense for Returning to Child's Residence
A person commits an offense if, in violation of a court order under this section, the person returns to the residence of the child the person is alleged to have abused. An offense under this subsection is a Class A misdemeanor, except that the offense is a felony of the third degree if the person has previously been convicted under this subsection. Tex. Fam. Code § 262.1015(h).