If DFPS seeks to formally remove your child, seek legal advice.
If DFPS seeks to legally remove a child, they must file a petition called a Suit Affecting the Parent Child Relationship, an affidavit containing the allegations that necessitate the request for a removal, and request that a court name DFPS Temporary Managing Conservator of the child.
Be aware that the caseworker will use information gathered during the investigation and FBSS phases when preparing the affidavit. If DFPS requests a removal, they may ask a parent to voluntarily allow DFPS to obtain temporary custody of their child.
A parent is not obligated to agree with the removal of their child and may want to consult an attorney before making this decision.
A. Emergency Removal
1. Removal without a court order:
DFPS can remove a child without a court order in some emergency circumstances. If DFPS removes a child from a parent or legal guardian without a court order, DFPS must file a SAPCR, request that the court appoint an attorney ad litem for the child, and request an initial hearing no later than the next business day after the emergency removal. DFPS may have the hearing without the parents present, which is called an ex parte hearing.
2. Removal with a court order:
DFPS can request that a court sign an order to remove a child from the parents in an ex parte hearing without the parents present. If DFPS obtains an order authorizing the emergency removal of a child, DFPS may remove the child from the parents after obtaining the order.
B. Non-Emergency Removal
If DFPS does not believe that a child is in immediate danger, they may request Temporary Managing Conservatorship of a child after filing a petition and providing notice of a hearing to the parents. When DFPS requests a non-emergency removal, the parents are entitled to notice of the hearing and may attend the hearing to provide the court with their position regarding DFPS’s request.
C. Contesting Removal
If a parent does not agree with either a court ordering emergency temporary managing conservatorship of their child to DFPS or with DFPS’s request for temporary managing conservatorship in a non-emergency hearing, the parent may contest the emergency removal or request for removal and ask that a full hearing with evidence be conducted where DFPS must be able to show they can meet their legal burden to seek the removal of the child. If a court does not find that DFPS has met their legal burden to be named Temporary Managing Conservatorship of a child, the child should be returned to a parent. If a court does find that DFPS has met their legal burden to be named Temporary Managing Conservatorship of a child, then a temporary order will be issued naming DFPS as the Temporary Managing Conservator of the Child and the case will proceed with the conservatorship unit of DFPS.
1. Contesting an Emergency Removal
Within 14 days from the date of an emergency removal, a hearing should be set so the Court can decide whether or not DFPS should continue as Temporary Managing Conservator of a child.
If the court will not be hearing evidence at this time, you may request a full evidentiary hearing set on a later date where DFPS must show they can meet the legal burden to remove a child from a parent. If a parent requests a full evidentiary hearing, a parent may provide their own evidence to support their position against removal and may be required to testify. Any parent contesting a removal of their children should seek the legal advice of an attorney before deciding to move forward with a full evidentiary hearing.
If a court-appointed attorney has not yet been appointed for a parent before the 14-day hearing, a parent may also ask whether the court will appoint an attorney to represent the parent. If a parent has not yet hired or been appointed an attorney before the 14 Day Adversary hearing is held a parent may request a continuance or extension of the hearing of not more than seven days in order to seek legal representation (Texas Family Code chapter 262.201(a-5)).
a) Burden of Proof
- i) There was a danger to the physical health or safety of the child caused by an act or failure to act on the part of the parent or the person entitled to possession of the child, and that for the child to remain in the home is contrary to the welfare of the child;
- ii) The urgent need for protection required immediate removal and that reasonable efforts consistent with the circumstances and with providing for the safety of the child were made to eliminate or prevent removal; and
- iii) Despite reasonable efforts to eliminate the need for removal, there is a substantial risk of continuing danger to the child if the child is returned to the home.
An attorney representing DFPS will likely provide evidence to support DFPS’s request for Temporary Managing Conservatorship of a child in the form of documents, video and audio recordings (if available), and witness testimony. A parent’s attorney may also put on evidence as to why the court should not grant DFPS temporary custody of a parent’s child. The attorney ad litem appointed to represent a child will also participate in the hearing and will likely question witnesses and may present their own evidence. Parents may be required to testify in these hearings and are often questioned by all attorneys in the case.
Any parent considering seeking a contested evidentiary hearing should talk to a lawyer before testifying.
2. Contesting a Non-Emergency Removal
If DFPS has not removed a child from a parent in an emergency situation, but is seeking that the court name DFPS Temporary Managing Conservator of a child, the initial hearing must be set within 30 days of DFPS filing their legal petition to start the case (see Texas Family Code chapter 262.201(b)). If a parent does not agree with DFPS being named Temporary Managing Conservator of a child, the parent may still contest the request of DFPS and ask that the court conduct a full hearing with evidence.
a) Burden of Proof
- there is a continuing danger to the physical health or safety of the child caused by an act or failure to act of the person entitled to possession of the child and continuation of the child in the home would be contrary to the child's welfare; 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.
Evidence in a contested non-emergency Temporary Managing Conservatorship request is similar to the evidence that would be presented in a contested emergency removal.
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