DFPS must provide sufficient evidence in a removal affidavit to convince the court to grant a removal order.

DFPS must document in the affidavit all reasonable efforts, consistent with the circumstances and providing for the safety of the child, that were made to prevent or eliminate the need for the removal of the child.

Texas Family Code §262.101External Link(b)

Texas Family Code § 262.105(c)External Link

Both of the following must happen in every case:

• DFPS informs the court as to whether there is an existing protective order involving a party or child and attaches a copy of the order to the petition.
• The caseworker notifies the closest active military base if a person alleged to have committed abuse or neglect is on active military duty or is the spouse of a person on active duty.

Texas Family Code §102.008(b)(11)External Link

Texas Family Code §261.301(j)External Link

Unless the local court requires otherwise, the caseworker must use the Affidavit in Support of Removal. See the Sample Removal AffidavitWord Document and Instructions for the Removal AffidavitPDF Document under the Affidavits heading in Section 13 of the Texas Practice Guide for Child Protective Services Attorneys.

If a child may be subject to the Indian Child Welfare Act (ICWA), the caseworker must use the Affidavit in Support of Emergency Removal of an Indian Child. See the ICWA Emergency Removal AffidavitPDF Document under the Indian Child Welfare Act heading in Section 13 of the Texas Practice Guide for Child Protective Services Attorneys.

The affidavit must contain enough facts, based on personal knowledge, to demonstrate that removal is justified under the applicable standard.

The affidavit must also include all reasonable efforts made to prevent removal. The caseworker must provide the following information in the affidavit:

• Why an order for the removal of the alleged perpetrator or a protective order would not protect the child in the child’s home.
• Why a family-initiated parental child safety placement (PCSP) was not possible. The following reasons are acceptable:
  • A PCSP was offered but refused.
  • There was no time, consistent with the physical health or safety of the child and nature of the emergency, to conduct assessments on a PCSP caregiver.
  • A PCSP would pose an immediate danger to the physical health or safety of the child.

Texas Family Code §262.101(a)(b)External Link

If the affidavit does not contain enough information to justify removal, the caseworker may need to conduct further investigation or there may not be a legal basis for removal.

A court cannot rely on certain kinds of evidence in a finding for removal, including evidence that a parent has done any of the following:

• Home-schooled the child.
• Experienced economic disadvantages.
• Was charged with a nonviolent misdemeanor (other than one listed in Title 5 or 6 of the Penal Code or one that involves family violence).
• Provided or administered low-THC cannabis prescribed for the child.
• Declined immunizations for the child for reasons of conscience, including a religious belief.
• Sought an opinion from more than one medical provider on the child’s medical care, transferred the child’s medical care to a new medical provider, or transferred the child to another health care facility.
• Allowed the child to engage in independent activities that are appropriate and typical for the child’s level of maturity, physical condition, developmental abilities, or culture.
• Tested positive for marijuana, unless DFPS has evidence that the parent’s use of marijuana has caused significant impairment to the child’s physical or mental health or emotional development

Texas Family Code §262.116External Link

The caseworker documents these categories of evidence if they are relevant to an investigation, but the caseworker cannot use them to justify a removal (or termination of parental rights). See 5563 Involuntary Termination of Parental Rights.

The affidavit must also be complete, concise, and organized. The caseworker must review the affidavit before providing it to the attorney representing DFPS and ensure it does not contain typographical or grammatical errors.

The affidavit must not include adoptive names of biological siblings or their adoptive parents. The caseworker must only use the biological sibling’s birth name to ensure confidentiality for the sibling and sibling’s adoptive family. See 1453.1 Sharing Information During the Course of an Investigation.