Department of Family and Protective Services (DFPS)
Provides DFPS policies, procedures, FAQs, guides for parents, Adopt-A-Caseworker & Rainbow Rooms, departmental projects, and more.
Online system for mandated reporters and concerned citizens to confidentially (but not anonymously) report alleged abuse and neglect. Includes a flyer, FAQ, guide for professionals required to report, and more.
Following Governor Perry’s “ordered statewide investigation into the policies and practices of CPS,” a toll-free line and email address have been established to report complaints, information, or other concerns about “casework management” and other departmental actions.
Statutes and Regulations
Reporting of Child Abuse and Neglect
- Tex. Fam. Code § 261.001 — Definitions.
- Tex. Admin Code tit. 40, § 700.501 — Terminology used in statutory definitions.
- Tex. Admin Code tit. 40, § 700.502 — Definitions.
- Tex. CPS Handbook § 2111 — Definitions.
The definitions used by DFPS and family court in child protective matters.
Anyone responsible for a child can be a perpetrator of child abuse or neglect in Texas. “Person responsible for a child’s care, custody, or welfare” means a parent (who has particular rights and duties per Fam. Code § 151.001), guardian, foster parent, or conservator of the child; a past or present member of the child’s family or household, which includes any person over 10 years of age living in the same home, whether they are related or not; anyone with whom the child’s parent cohabits; or someone who does not reside in the home but has “regular free access to the household,” or “takes care of or assumes responsibility for children in the household.”
Child abuse in Texas includes a parent’s current use of a controlled substance “in a manner or to the extent that the use results in physical, mental, or emotional injury to a child,” or “causing, expressly permitting, or encouraging a child to use a controlled substance.” A finding of abuse or neglect cannot be sustained with only a “reasonable likelihood that in the foreseeable future there will be an occurrence of child abuse or neglect,” but may still result in CPS intervention in that family’s home life.
While not specifically defined as either neglect or abuse, “born addicted to alcohol or a controlled substance” means a child born to a mother who used a controlled substance (other than those obtained by legal prescription) during her pregnancy, where the baby, as a result of that drug use, experiences withdrawal, “observable or harmful effects in … physical appearance or functioning,” or simply “exhibits the demonstrable presence of … a controlled substance” in his or her bodily fluids.
- Tex. Fam. Code § 261.101 — Persons required to report; time to report.
- Tex. Fam. Code § 261.201 — Confidentiality and disclosure of information.
- Tex. Admin Code tit. 40 § 700.204 — Redaction of records prior to release.
- Tex. CPS Handbook § 2131 — Legal requirements for reporting abuse or neglect.
The legal requirement to report known or suspected child abuse or neglect applies to any person who knows of or suspects child abuse or neglect in Texas. Special rules apply to “mandated reporters,” or professionals who have direct contact with children and are employed by a facility owned, operated or licensed by the state. Once a mandated reporter has “cause to believe” that a child is the victim of abuse or neglect, the report must be made within 48 hours. This requirement applies even when communications with the reporter would otherwise be privileged (such as with an attorney or member of the clergy). The identity of the person filing the report is generally confidential and will not be revealed to the family, except under a court order or during a law enforcement investigation.
- Tex. Fam. Code § 261.3015 — Flexible response system.
- Tex. Admin. Code tit. 40, § 700.505 — Priorities for reports of abuse or neglect.
- Tex. CPS Handbook § 2140 — Screening an intake for investigation.
DFPS has wide discretion to prioritize allegations of abuse and neglect and choose which ones to investigate. The department may choose whether or not to investigate cases that do not indicate an “immediate risk of abuse or neglect that could result in the death of or serious harm to the child.” However, caseworkers generally rule out only cases involving families they are unable to locate, or involving vague allegations. For those cases it chooses to investigate and does not rule out, DFPS has two priority categories. Priority I is for allegations involving children who “appear to face an immediate risk of abuse or neglect that could result in death or serious harm.” Priority II is for all other allegations of abuse or neglect. A case involving a child whose parent parent “behaves in a bizarre, psychotic, or extremely intoxicated or drugged manner and abuse or neglect is alleged” is considered Priority I. CPS must respond to Priority I cases immediately when they “involve circumstances in which the death of the child or substantial bodily harm to the child will imminently result,” all other Priority I cases within 24 hours, and Priority II cases within 72 hours.
- Tex. Fam. Code § 261.301 — Investigation of report.
- Tex. Fam. Code § 261.302 — Conduct of investigation.
- Tex. Admin. Code tit. 40, § 700.507 — Investigation interviews.
- Tex. Admin. Code tit. 40, § 700.514 — Risk assessment and safety evaluation.
- Tex. CPS Handbook § 2120 — CPS authority for investigating reports of abuse or neglect.
The investigation may include a home visit as well as an interview with and examination (“which may include a medical, psychological, or psychiatric examination”) of any children in the home. The interview and examination of the child who was the subject of the abuse or neglect report may occur at the child’s school, or the child may be transported to a different location by the department—both without parental consent.
If a family cannot be located, DFPS may request assistance from the district attorney to petition the court for a court order placing the family on the “child safety check alert list,” as per Fam. Code § 261.3022. Placement on the child safety check alert list allows law enforcement to attempt to locate the child and question the subject of the abuse and/or neglect allegations. If a family fails to cooperate with investigation, the department can seek assistance from the local district attorney or county as per Fam. Code § 261.3031 and Admin Code tit. 40, § 700.308 for a court order to force an investigation. If DFPS believes that “the refusal poses a risk to the child’s safety,” assistance must be sought and may lead to a court order for removal from the home.
- Tex. Fam. Code § 261.1055 — Notification of district attorneys.
- Tex. Admin Code tit. 40, § 700.506 — Notification of law enforcement agencies.
- Tex. CPS Handbook § 2136 — When to notify law enforcement about reports of abuse or neglect.
A district attorney can request from DFPS “notification of some or all reports of suspected abuse or neglect of children.” Regardless, all reports of alleged abuse or neglect are currently referred to the appropriate law enforcement agency for possible criminal prosecution. Notice must be given to law enforcement within 24 hours orally or by fax of receiving a Priority I report, even if it is later discovered to be unfounded or not Priority I; law enforcement must be notified of all other reports and initial verbal reports in writing within three days.
- Tex. CPS Handbook 1931.4 — Marijuana policy / medical marijuana.
- Tex. CPS Handbook 1931.5 — Determining safety and risk when marijuana, other substances, or alcohol are present.
- Tex. CPS Handbook § 1932.3 — Drug use outside of the home.
- Tex. CPS Handbook § 1980 — Assessing substance abuse
- Tex. CPS Handbook Appendix 1931.1 — Physical signs and symptoms of drug and alcohol use.
The definition of “controlled substance” under the Texas Controlled Substances Act does not include marijuana, as it is not “scheduled” as part of any Penalty Group; however, its possession is still subject to criminal penalties under its own category. Despite this incongruity, DFPS policy states that “DFPS considers marijuana a Schedule I Controlled Substance that is illegal.” DFPS policy also states that “the State of Texas and DFPS do not recognize the use of medical marijuana, whether taken in pill form or by smoking. DFPS views marijuana as analogous to any other illegal substance or the use of alcohol as it relates to a child’s safety.”
When a report is received involving parental use of controlled substances or marijuana, DFPS policy requires the caseworker to determine whether the marijuana or other substance use puts a child in “situations of danger or harm” or places the child “at risk for abuse or neglect.” The caseworker must assess the child’s current safety as well as “risk in the foreseeable future.” To ascertain immediate safety, the case worker evaluates parental behavior, physical signs of impairment, whether there is a sober parent who “possesses sufficient protective capacities to mitigate threats,” whether the basic needs of the child are being met, whether the child can access the substances, and the child’s “physical safety.” To ascertain whether there may be risk in the future, the caseworker conducts an extensive risk assessment, makes “collateral contacts” with school officials and childcare staff, considers the parent(s)’ participation in treatment programs, reviews their mental health history, determines when the parent last used a substance, asks about visitors to the home who use or have used drugs, performs a drug test, and so forth.
The caseworker must also investigate any suspicion of drug use that occurs outside the home, but “must not automatically … [come] to one conclusion or another.” Using the example of a parent using marijuana at a party outside the family home, DFPS policy instructs caseworkers to focus on the “effect that the marijuana smoking, drug use, or alcohol use have on the child and the child’s safety … rather than purely the parent’s use of the substance.” Whether or not the caseworker makes a finding of abuse depends on her assessment of the child’s vulnerability, threats of danger, and “the capacity of a protective caregiver.”
- Tex. Admin. Code § 700.514 — Risk assessment and safety evaluation.
- Tex. CPS Handbook § 2320 — Assessing risk.
During the investigation of an allegation of abuse or neglect, DFPS caseworkers must not only decide whether the abuse or neglect occurred, but also whether the child is at risk of future abuse or neglect. This is called the safety assessment, and DFCS has a defined set of “risk factors” to evaluate in seven “risk areas of concern.” Drug use by someone in the home is included as a factor in two areas of concern, “caregiver capability” and “maltreatment”; a child “born addicted” or who has been exposed to drugs is determined to be “currently severe” in a pattern of maltreatment. Another generic risk factor, “dangerous exposure,” may also encompass use of drugs. The finding of these “risk factors” are subjective determinations and there is no particular formula that guides a caseworker’s decision—just a complex and detailed framework. Each risk factor has a corresponding level of concern which help the caseworker decide the disposition at the end of a case.
- Tex. CPS Handbook § 1970 — Drug-endangered children.
- Tex. CPS Handbook § Appendix 1971 — Protocol for working with drug-endangered children.
There is a Memorandum of Understanding between DFPS and the Texas Alliance for Drug Endangered Children, effective June 2010. This memo explains that DFPS works with law enforcement, medical personnel, and prosecutors when a child “may be affected by the use, distribution, or manufacture of a controlled substance.” The memo includes safety tips for caseworkers visiting homes, given that drugs are believed to present “additional safety risks” in home visits. The department must take precautions (for example, requesting law enforcement assistance) when a home they are to visit is known for drug dealing, when one or both parents appear to be intoxicated, when there is any suspicion that drugs are sold out of the home, or when the case worker has observed drug use.
Disposition of Investigation and Substance Abuse Protocols
- Tex. Admin Code tit. 40, § 700.511 — Disposition of the allegations of abuse or neglect.
- Tex. CPS Handbook § 2471 — Definitions of dispositions of abuse or neglect.
DFPS must make two findings at the conclusion of an investigation. First, it must decide the “allegation disposition,” deciding whether each individual allegation (contained in the report or identified during the investigation) was true. Then, examining the family’s case as a whole, it must decide the “overall disposition.” The burden of proof in both decisions is “preponderance of the evidence,” meaning that DFPS must have evidence that shows “more likely than not” that abuse or neglect has occurred.
The allegation disposition has four main choices: “Reason to believe,” meaning that the abuse or neglect was found to occur; “ruled out,” meaning that all available information leads to the conclusion that there has not been abuse or neglect; “unable to complete,” meaning that the family could not be located or would not cooperate with the investigation; and “unable to determine,” where no other possible findings are appropriate. A fifth category, “administrative closure,” is for cases screened in for investigation, after which information is received that reveals that “continued [DFPS] intervention is unwarranted.”
Once the allegation dispositions are decided, the overall disposition must be designated one of the same five choices. If any one allegation disposition is designated “reason to believe,” the overall disposition must be the same. If all allegation dispositions are “ruled out,” the overall case is ruled out. The overall disposition is “unable to complete” when all allegations have been designated “unable to complete.” If any allegation disposition is “unable to determine,” and none are “reason to believe,” then the overall case disposition is “unable to determine.”
- Tex. Fam. Code § 261.001(8) — Definitions.
- Tex. CPS Handbook § 2471.2— Dispositions of allegations of prenatal drug or alcohol exposure.
- Tex. CPS Handbook § 2731 — Prenatal exposure to controlled substances.
Though it is not specifically defined as “abuse” under law, Texas DFPS has extensive policies to handle reports of newborns born exposed to drugs or alcohol, including marijuana. This is despite the fact that the only reference to such cases in Texas law concerns babies “born addicted to alcohol or a controlled substance” (Fam. Code § 261.001(8)), which does not include marijuana. Nevertheless, Texas DFPS regularly intervenes when it receives reports of prenatal drug exposure. At the end of the investigation, DFPS makes one of the following findings: “reason to believe,” “unable to determine,” “ruled out for physical abuse,” or “neglectful supervision.” The caseworker must consider referring the mother and newborn exposed to substances for assessment and treatment services.
The department may determine that there is “reason to believe” physical abuse occurred when a preponderance of the evidence indicates the child had a physical injury when born due to non-prescription substance use. Such a physical injury could mean withdrawal symptoms, “observable or harmful effects from the controlled substance use in his or her physical appearance or problems in functioning,” including high-pitched crying and feeding issues, or “exhibit[ing] the demonstrable presence of a controlled substance in his or her bodily fluids, such as through a positive toxicology screen.” This means that a newborn who tests positive for a controlled substance—which DFPS considers to include marijuana—this is considered evidence of “physical injury,” even if the child suffers from no observable symptoms. If any of these indicators are present, DFPS presumes that the mother’s use of controlled substances resulted in injury to the child, and that the definition of abuse is met. However, in making the separate determination as to the newborn’s future risk of abuse or neglect, the caseworker must consider frequency of use, and decide whether the mother used “once, frequently, occasionally, or chronically.”
Since prenatal substance use is considered by the department to be “substantial risk of immediate harm to the newborn,” a “reason to believe” the child has neglectful supervision can be made when a preponderance of the evidence indicates that the mother engaged in the use of controlled substances during her pregnancy, even when there is no injury to the newborn or any controlled substance in their bodily fluids. This determination can be made when the mother has had a positive toxicology drug test, she is honest about drug use during her pregnancy, she “shows observable signs of drug use while pregnant”, or “one or more credible witnesses state that the mother used drugs during the pregnancy.”
- Tex. CPS Handbook § 1940 — Establishing protective measures when a child is threatened by substance abuse.
DFPS policy states that a child’s “accessibility,” or ability to access marijuana, other substances, prescriptions drugs, or alcohol, makes the child “vulnerable to threats or dangers.” This is considered an immediate safety concern and could lead to DFPS taking protective measures. Protective measures can include anything from a simple safety assessment to the assignment of temporary custody of the child to DFPS.
- Tex. CPS Handbook § 1952 — Newborns exposed to drugs or alcohol.
- Tex. CPS Handbook § 2123 — Children not yet born or not yet alive.
- Tex. CPS Handbook § 2734 — Prenatal use of alcohol or controlled substance: birth imminent.
In the case of a newborn exposed to drugs or alcohol, such an allegation could immediately result in DFPS filing for temporary custody of the baby. A number of extra protocols are in place to assess the ongoing safety of the newborn and recommend services.
Normally, the unborn are not under the purview of DFPS, as they are not “children” under law, and policies regarding prenatal drug exposure only apply the moment the mother gives birth and the child takes its first breath. However, this is not true when DFPS believes that “the birth is imminent and the child (if born alive) will likely be born addicted to alcohol or a controlled substance,” especially where physical injury may exist, and there are other children in the home “alleged to be abused or neglected or at risk of future abuse or neglect.” In such cases, the department may “initiate a casework-related special request” and to assess after birth has occurred.
- Tex. CPS Handbook § 1900 — Substance abuse services.
- Tex. CPS Handbook § 1920 — Substance abuse testing.
- Tex. CPS Handbook Appendix 1960 — Treatment options for substance abuse.
DFPS can offer a variety of substance abuse services to a child’s parent or legal guardian. The department may drug test at any time in the course of an investigation or during further involvement in a family’s life.
- Tex. CPS Handbook § 1951 — Children and adolescents who smoke marijuana, use other drugs, or drink alcohol.
Use of marijuana or other substances by a minor is treated by DFPS as a medical concern and as a “child in need of protection.” The parent is expected to “take responsibility to obtain testing, screening, assessment, or treatment for the child or adolescent, if it appears necessary.” If a parent refuses to have their child drug tested, or otherwise refuses to participate or allow their child to participate in these interventions, DFPS may seek legal involvement.
- Tex. Fam. Code § 264.104 — Taking possession of a child without a court order.
- Tex. CPS Handbook § 5252 — Emergency removal from the child’s parents without a court order.
With a law enforcement officer, a representative of the department may remove a child from the home without a court order, based on information which would lead “a person of ordinary prudence and caution to believe” that the parent or caretaker is currently using a controlled substance and that such use is an immediate danger to the physical health or safety of the child. A law enforcement officer may also remove a child from a home and hand the child over to DFPS. A court hearing must occur the first business day after the child or children has been taken from the home. A further court hearing must occur within 14 days.
When DFPS decides a child should be removed from the home in a non-emergency situation, it may give the parent or legal guardian the option of a temporary out-of-home placement called Parental Child Safety Placements (PCSPs) where the parent chooses where to place the child outside the home, instead of petitioning for court-ordered removal.
Administrative Appeals and Records
- Tex. Fam. Code § 261.309 — Review of department investigations.
- Tex. Admin Code tit. 40, § 700.309 — Administrative reviews of client complaints.
- Tex. Admin Code tit. 40, § 700.516 — Administrative reviews of investigation findings.
- Tex. CPS Handbook § 2850 — Administrative review of investigation findings.
- Tex. CPS Handbook § 2860 — Reviews by the Office of Consumer Affairs.
DFPS has internal policies and procedures to resolve complaints relating to, and conduct reviews of, child abuse or neglect investigations it has conducted (not including orders by a court). If a person under investigation for abuse or neglect requests clarification of their case or files a complaint, the DFPS supervisor must conduct an “informal review to clarify the person’s status or resolve the complaint” within 14 days. If the person then continues to dispute DFPS findings of child abuse and/or neglect, an administrative review can be requested. Administrative review is to be completed within 45 days by a department employee who was not involved in the investigation, unless a criminal or civil court proceeding is pending related to the matter, in which case the review may be postponed until the proceeding has been completed.
If a further appeal is desired after the person’s role in the allegation of abuse or neglect is upheld through administrative review, they can request an investigation by the Office of Consumer Affairs (OCA). That request must be made within 30 days of the notification of the DFPS decision.
- Tex. Fam. Code § 261.002 — Central registry.
- Tex. Admin Code tit. 40, § 700.104 — Child abuse and neglect central registry.
- Tex. CPS Handbook § 1181 — Information management protecting adults and children in Texas (IMPACT).
The department uses an automated system called IMPACT, which maintains files on all reported cases of child abuse or neglect. Within this system is the CPS central registry, which includes the information gathered during investigations that arrived at a disposition of “reason to believe.” Information on the central registry may be shared with child protection authorities in other states, and information is only removed from IMPACT when the entire case is no longer retained by DFPS. The length of retention depends on the disposition of a case, but is normally five years or until the youngest child in the home turns 18.
- Tex. Fam. Code § 261.315 — Removal of certain investigation information from records.
- Tex. Admin Code tit. 40, § 700.523 — Removal of alleged perpetrator role information.
If the department concludes that the allegations of abuse or neglect are untrue, that the person who was alleged to have committed them did not, or if they are not a perpetrator according to an administrative review or court ruling, DFPS must notify that person of their right to to request removal of their records. On request that DFPS remove information about their “alleged role in the abuse or neglect report,” the department will remove that information.
Family Court Proceedings
- Tex. Fam. Code § 264.203 — Required participation.
A court may order a parent who has been determined to have committed abuse and/or neglect to participate in services DFPS provides or purchases for them. These services are meant to alleviate “the effects of the abuse or neglect that has occurred” or reduce “the reasonable likelihood that the child may be abused or neglected in the immediate or foreseeable future.” This is true regardless of whether the child or children resides in the home or has been removed from the home. “If the person ordered to participate in the services fails to follow the court’s order, the court may impose appropriate sanctions in order to protect the health and safety of the child, including the removal of the child.” These services could include parenting classes, drug tests, and substance abuse rehabilitation.
- Tex. Fam. Code § 264.801 — Family drug court program defined.
- Tex. CPS Handbook Appendix 1961 — Family Drug Treatment Courts (FDTC)
A county may establish a family drug court to “integrate” substance abuse services with a “comprehensive case management approach,” in order to “rehabilitate a parent who has had a child removed from the parent’s care by the department because of suspected child abuse or neglect and who is suspected of substance abuse.” If a parent meets the requirements of a county’s family drug court program, and remains abstinent throughout “periodic drug testing,” the goal of family reunification will be achieved. The parent may be required to pay for all costs of treatment and other services depending on their financial status.
- Tex. Fam. Code § 161.001 — Involuntary termination of parent-child relationship.
- Tex. Fam. Code § 161.206 — Order terminating parental rights.
The court may terminate parental rights without parental consent if the court finds “by clear and convincing evidence” that the parent has “used a controlled substance in a manner that endangered the health or safety of the child and failed to complete a court-ordered substance abuse treatment program or after completion of a treatment program, continued to abuse a controlled substance.” As regards substance use during pregnancy, parental rights may be terminated if a parent has “been the cause of the child being born addicted to alcohol or a controlled substance.” A suit for termination can be filed prior to birth as per § 161.102. This does not affect the rights of a biological or adoptive maternal or paternal grandparent to “reasonable access.”
State Marijuana Laws
There are no progressive marijuana laws in Texas.
All Texas Laws & Penalties (NORML)
Last updated: December 7, 2013 at 15:23 pm