A. Hearing After Emergency Removal With or Without a Court Order
1. When Must Hearing Be Held
A hearing must be held not later than the 14th day after the date the child was taken into possession by DFPS unless the court grants an extension pursuant to Tex. Fam. Code § 262.201(a-5), (e) or (e-1). Tex. Fam. Code § 262.201(a).
2. Extension
Although Tex. Fam. Code § 262.103 allows for the temporary order, temporary restraining order, and attachment of a child to be extended, there is no specific provision for the extension of the Adversary Hearing beyond the 14th day. If the hearing cannot be held within the 14 days, some courts convene and reset the hearing, while others rely on case law which indicates that the failure to conduct the Adversary Hearing does not deprive the court of its jurisdiction. In re J.M.C., 109 S.W.3d 591, 595 (Tex. App.—Fort Worth 2003, no pet.).
For indigent parents, the court may, for good cause shown, postpone the full Adversary Hearing for up to seven days from the date of the attorney's appointment to provide the attorney time to respond to the petition and prepare for the hearing. Tex. Fam. Code § 262.201(e). For parents who are not indigent but who appear in opposition, the court may, for good cause shown, postpone the full Adversary Hearing for up to seven days from the date of the parent's appearance to allow the parent to hire an attorney or to provide the parent's attorney time to respond to the petition and prepare for the hearing. Tex. Fam. Code § 262.201(a-5) or (e-1). Under an extension granted pursuant to Tex. Fam. Code § 262.201(e), the court may shorten or lengthen the extension granted if the parent and the appointed attorney agree in writing. If the court postpones the full Adversary Hearing, the court shall extend a temporary order, temporary restraining order, or attachment issued by the court under Tex. Fam. Code § 262.102(a) for the protection of the child until the date of the rescheduled full Adversary Hearing. Tex. Fam. Code § 262.201(a-5) or (e).
3. Burden/Standard of Proof
Findings must be based on sufficient evidence to satisfy a person of ordinary prudence and caution. Tex. Fam. Code § 262.201(g).
4. Duties of DFPS Prior to Adversary Hearing
Tex. Fam. Code § 262.014 requires DFPS, at the request of the attorney for a parent who is a party in the suit or the attorney ad litem for the parent's child, before the adversary hearing, to provide the name of any person the Department intends to call as a witness to the allegations (except the name of a Department employee), a copy of any offense report relating to the allegations contained in the petition that will be used to refresh a witness's memory, and a copy of any photo, video, or recording that will be presented as evidence.
5. Required Findings if Child to Remain in Care
a. Danger to Physical Health and Safety Finding
There was a danger to the physical health or safety of the child, including a danger that the child would be a victim of trafficking under Tex. Penal Code § 20A.02 or Tex. Penal Code § 20A.03, which was caused by an act or failure to act of the person entitled to possession from whom the child is removed and for the child to remain in the home is contrary to the welfare of the child. Tex. Fam. Code § 262.201(g)(1).
b. Urgent Need to Protect Finding
The urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal. Tex. Fam. Code § 262.201(g)(2).
In determining whether there is a continuing danger to the physical health or safety of the child under Tex. Fam. Code § 262.201(g), the court may consider whether the household to which the child would be returned includes a person who has:
• Abused or neglected another child in a manner that caused serious injury to or the death of the other child; or
• Sexually abused another child. Tex. Fam. Code § 262.201(i).
c. Reasonable Efforts Finding
Reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home. Tex. Fam. Code § 262.201(g)(3). The order must describe with specificity in a separate section all reasonable efforts made to prevent or eliminate removal or return the child home and to place the child with a non-custodial parent. Tex. Fam. Code § 262.201(g-2).
Special Issue: What constitutes a reasonable effort will depend on the circumstances of the case. For example, if the reasons for removal were neglectful supervision, the attempt by DFPS to institute a safety plan allowing an appropriate relative to move into the home may be considered a reasonable effort to prevent removal.
6. Court Actions/Orders if Child to Remain in Care
a. Issue an Appropriate Temporary Order
A temporary order rendered under Tex. Fam. Code Chapter 262 is valid and enforceable until properly superseded by a court with jurisdiction to do so. A court to which the suit has been transferred may enforce by contempt or otherwise a temporary order properly issued under Tex. Fam. Code Chapter 262. Tex. Fam. Code § 262.204.
b. Admonish and Notify Parents
Inform each parent in open court that parental and custodial rights and duties may be subject to restriction or termination unless the parent is willing and able to provide a safe environment for the child. Tex. Fam. Code § 262.201(m).
Before the commencement of the full Adversary Hearing, 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).
c. Order Placement with Another Parent
The court must place the child with the parent who did not endanger the child or perpetrate abuse or neglect unless the parent cannot be located, or the court finds that possession of the child by the parent constitutes a continuing danger to the child despite reasonable efforts by DFPS to enable that person's possession. Tex. Fam. Code § 262.201(g-1). If such a person is located by DFPS after the Adversary Hearing and makes a written request for possession of the child, DFPS must notify the court and request a hearing. Fam. Code § 262.201(q).
d. Order Placement with a Relative
If it is not safe to return a child to either parent, the court must place a child with a relative unless it is not in the best interest of the child. Tex. Fam. Code § 262.201(n).
e. Render Protective Order, if Necessary
If the court finds that the child requires protection from family violence by a member of the child's family or household, the court shall render a protective order for the child under Tex. Fam. Code Chapter 105. Tex. Fam. Code § 262.201(k).
f. Inquire About Native American Heritage
The court shall ask all parties present at the full Adversary Hearing whether the child or the child's family has a Native American heritage and identify any Native American Tribe with which the child may be associated. Tex. Fam. Code § 262.201(f). For more information regarding requirements when a child has a Native American heritage, see the Indian Child Welfare Act chapter of this Bench Book.
g. Set Status Hearing
Although not statutorily required, the Status Hearing date is usually set at the Adversary Hearing when open court notice to parties can be given.
Special Issue: Courts should consider setting the dates for Status, Permanency, and Final Hearings at the start of the case as it helps provide all parties and interested persons with notice of future hearings.