In an adversary hearing, DFPS rebuts the presumption that placing the child with a parent or other person presently entitled to possession is in the child’s best interest.

Specifically, the caseworker must submit evidence sufficient to satisfy a person of ordinary prudence and caution that:

• There was a danger to the child’s physical health or safety, 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 it is contrary to the child’s welfare to remain in the home.
• The urgent need for protection required immediate removal, and reasonable efforts consistent with the circumstances and with providing for the child’s safety were made to eliminate or prevent removal.
• Despite reasonable efforts to prevent or eliminate the need for removal, there is a substantial risk of continuing danger to the child if the child is returned to the home.

Texas Family Code §262.201(g)External Link

In determining if there is a continuing danger to the child’s physical health or safety, the court may consider if the household to which the child is to be returned includes a person who did one or both of the following:

• Abused or neglected another child in a manner that caused serious injury to or the death of the other child.
• Sexually abused another child.

Texas Family Code §262.201(i)External Link

Accordingly, the caseworker may submit sufficient evidence of the family’s history to support a conclusion of either serious abuse or neglect or prior sexual abuse by a person in the household, or may show continuing danger based on other evidence.

Unless there is a prior court order that limits a parent’s rights, or DFPS can demonstrate that placement with a non-custodial parent threatens the child’s safety, a non-custodial parent is entitled to custody of a child removed by DFPS.

Therefore, if DFPS determines that the child’s non-custodial parent did not cause the immediate danger to the child’s physical health or safety, or was not the perpetrator of the abuse or neglect, DFPS must do one of the following:

• Place the child with the child’s non-custodial parent.
• Submit evidence sufficient to satisfy a person of ordinary prudence and caution that the child does not belong with the non-custodial parent. The evidence must show one of the following:
  • The non-custodial parent cannot be located, despite exercising due diligence, or is unable or unwilling to take the child.
  • Placing the child with the non-custodial parent presents a continuing danger to the child’s physical health or safety caused by the non-custodial parent’s act or failure to act.

Texas Family Code §262.201(g-1)External Link

If DFPS determines that placement with the child’s non-custodial parent is not safe, DFPS must place the child with the child’s relative, or prove that it is not in the child’s best interest to be placed with a relative.

Texas Family Code §262.201(n)External Link

The caseworker must submit evidence that shows whether placing the child with a relative is safe or not safe and is in the child’s best interest or not.

At every hearing (from removal to permanency hearings), the court reviews the placement of any child not placed with a relative or designated caregiver, and makes a finding as to whether DFPS has the option to place a child with such a person.

Texas Family Code §262.0022External Link

Texas Family Code §263.002(b)External Link

The caseworker must prepare in advance to have current and accurate information to present to the court as to why a child is not placed with a relative or designated caregiver.