The Process of Removing Children from Parents or Caretakers
The Texas Family Code provides that CPS can either file a petition requesting a court order to take possession of a child or can take possession of a child prior to a court order if there is a reasonable belief that the child is at risk for immediate danger to the child's physical health or safety.
Seeking Court Approval Prior to Removal
CPS may file a suit asking the court permission to take possession of the child without prior notice of the suit and without a hearing if it can show that 1) there is an immediate danger to the physical health or safety of the child, or the child has been a victim of abuse or neglect and it is likely that the child will continue to be victimized if left in the home; 2) there is no time for a full adversary hearing to be held; and 3) reasonable efforts were made to prevent or eliminate the need to remove the child.
Removal Prior to Court Order
If CPS determines that the circumstances require the immediate removal of the child prior to obtaining a court order, CPS must without unnecessary delay 1) file a SAPCR; 2) request the court to appoint an attorney ad litem for the child; and 3) request an initial hearing to be held no later than the first working day after the date the child is taken into possession. It should be noted that the "initial hearing" is typically an ex parte hearing, thus, the parents are not present at the hearing. At the initial hearing, the court must order CPS to return the child to her parents, unless the court is satisfied that: 1) there is a continuing danger to the child; 2) continuation of the child in the home will be contrary to the child's welfare; and reasonable efforts were made to prevent or eliminate the need to remove the child.