Monday, December 31, 2012

1200 Legal Base for Child Protective Services

CPS 96-8

Management Policy

DFPS's Child Protective Services Program is based on federal and state laws. Federal laws, under which the program operates, are specified in the Social Security Act and interpreted through regulations published in the Code of Federal Regulations. State laws to protect children from abuse, neglect, or other harm have existed since 1931. DFPS is designated as the single state agency in Texas to administer Titles IV-B and IV-E of the Social Security Act.

The following items identify the state and federal laws that apply to the Child Protective Services Program.

1210 State Laws

CPS 96-8

Law

Some state laws pertaining to children and families are the Texas Family Code; the Human Resources Code; Texas Revised Civil Statutes Annotated, article 2351, Subsection 11; and the Texas Open Records Act.

1211 Texas Family Code

CPS 96-8

Law

The Texas Family Code (TFC) replaced the Dependency and Neglect statute which governed the protection, custody, and guardianship of children. (See Appendix 1211, Responsibilities under the Texas Family Code.)

1212 Human Resources Code

CPS 96-8

Law

The Human Resources Code (HRC) is a recodification of civil statutes governing state and county public welfare services, including statutes relating to child welfare. The HRC is the statutory base for many parts of DFPS's Child Protective Services program. (See Appendix 1212(a), DFPS Responsibilities Under the Human Resources Code; and Appendix 1212(b), County Responsibilities Under the Human Resources Code.)

1220 Federal Laws

CPS 96-8

Law

Some federal laws pertaining to children's services for which DFPS is responsible are Titles IV-B, IV-E, XIX, and XX of the Social Security Act; the Child Abuse Prevention and Treatment Act (P.L. 93-247); and the Indian Child Welfare Act of 1978 (P.L. 95-608).

1221 Title IV-A, Emergency Assistance

CPS 96-8

Law

Title IV-A of the Social Security Act gives states wide latitude in designing their emergency assistance program for needy families with children. States may claim the costs of services provided to eligible clients, as well as administration of the program. In Texas, Title IV-A is used to cover services provided in response to emergencies defined as "risk of abuse/neglect or out-of-home placement."

DFPS is the agency that collects the information necessary to establish a preliminary eligibility status. The Texas Department of Human Services is the agency that makes the final determination of eligibility.

1222 Title IV-B, Child Welfare

CPS 96-8

Law

Under Title IV-B, DFPS is responsible for the following:

1.   To protect and promote the welfare of children (Section 425).

2.   To prevent or remedy problems which may result in neglect, abuse, exploitation, or delinquency of children (Section 425).

3.   To prevent unnecessary separation of children from their families (Section 425).

4.   To return children to their families after providing services to the children and the families (Section 425).

5.   To place children in suitable adoptive homes if it is not possible or appropriate to return the child to the family (Section 425).

6.   To ensure adequate care of children in substitute care (Section 425).

7.   To comply with reporting requirements for Title IV (Section 476).

8.   To receive and spend child welfare earned funds for eligible child welfare services based on the Comprehensive Services Plan.

9.   To qualify for additional IV-B funds by conducting an inventory of foster care children; operating a foster care information system, a foster care case review system, and a service program to reunite families or ensure other permanency for children; and implementing a program to prevent removal of children from their families (Section 427).

1223 Title IV-E, Federal Payments for Foster Care and Adoption Assistance

CPS 96-8

Law

Under Title IV-E, DFPS administers federal matching funds for foster care maintenance and adoption assistance payments for children with special needs.

Cross-reference: (See Item 1510 and Item 1700 for more information.)

1224 Title XIX, Medicaid

CPS June 2010

Under Title XIX of the Social Security Act, DFPS makes Medicaid benefits available to children who are receiving protective services and who meet Medicaid eligibility requirements.

Children eligible for Medicaid are those receiving:

  •  Aid to Families With Dependent Children (AFDC) foster care;

  •  medical assistance only (MAO) foster care;

  •  state-paid foster care;

  •  Supplemental Security Income (SSI);

  •  Title IV-E adoption subsidies; and

  •  state-paid adoption subsidies.

See:

1510 Foster Care Maintenance Resources

1700 Adoption Assistance Program

DFPS continues to provide Title XIX Medicaid benefits when eligible children are placed or move out of state, unless the children are eligible under Title IV-E.

Children who are eligible under Title IV-E receive their Medicaid benefits from the state in which they live.

See:

1536 Medicaid Benefits for Foster Care Children Placed in Texas From Other States

1537 Medicaid Benefits for Foster Care Children Placed Out-of-State

1714.5 Determining the Adoption Assistance Payment Ceiling

1714.4 Supplemental Security Income (SSI) Payments and Adoption Assistance Payments

1225 Title XX, Block Grant

CPS 96-8

Law

Under the Title XX block grant provisions, DFPS is responsible for providing services directed toward the goal of preventing or remedying neglect, abuse, or exploitation of children. DFPS continues to provide Title XX services to eligible children when they move or are placed out of state.

DFPS must provide the Department of Health and Human Services (HHS) with an annual report identifying the intended use of block grant funds. DFPS meets this requirement with a report entitled Intended Use Report — Title XX Social Services Block Grant.

DFPS must also conduct periodic audits of expenditures and report how funds are spent.

1226 Child Abuse Prevention and Treatment Act (P.L. 93-247)

CPS 96-8

Law

This Act provides financial assistance to states to prevent and treat child abuse and neglect, to establish a National Center on Child Abuse and Neglect, and to provide adoption opportunities for children.

Under P.L. 93-247, DFPS meets certain criteria:

Criteria:

See:

1.   Define the term child abuse and neglect according to the federal definitions.

Item 2411

2.   Have a child abuse law that provides immunity for persons who report child abuse and neglect. (TFC, §34.03).

Section 2000

3.   Provide for reporting of known or suspected child abuse.

Section 2000

4.   Investigate report of child abuse and neglect.

Section 1000

5.   Provide effective child protective services.

Section 1000

6.   Provide emergency services to protect children's health and welfare.

Section 2000

7.   Maintain confidentiality of reports of abuse and neglect.

Item 1440

8.   Cooperate with law enforcement officials, courts, and appropriate state agencies.

Item 1130, Section 2000, Section 5000

9.   Maintain state funding at the 1973 federal fiscal year level and receive funds under this Act to supplement state funds.

Section 1300

10. Make information about child abuse and neglect available to the public.

Item 1160

11. Provide preferential treatment to parent organizations combating child abuse and neglect, if feasible.

12. Provide for the appointment of a guardian ad litem in child abuse and neglect court hearings.

1227 Indian Child Welfare Act (P.L. 95-608)

CPS 96-8

The Indian Child Welfare Act (ICWA) seeks to protect the best interests of Indian children. It establishes federal standards for removing Indian children from their families and for placing them in foster and adoptive homes.

Cross-reference: For information about the ICWA and DFPS's responsibilities under it, see Appendix 1226-A, Child-Placing Requirements of the Indian Child Welfare Act and Related Guidelines and Regulations, and Appendix 1226-B, Checklist for Compliance with the Indian Child Welfare Act.

1230 Constitutional Protections

CPS April 2010

The Fourth Amendment of the United States Constitution regulates DFPS investigations. Though DFPS investigations entail some unavoidable infringement on the privacy of the persons involved, the Fourth Amendment provides families and children protection from unreasonable search and seizure.

Definitions of Search and Seizure

A search is the act of entering a home or inspecting another place where a person has a reasonable expectation of privacy.

A seizure is an act that would make a reasonable person feel that he, she, or other persons (such as family members) are not free to leave.

An individual is protected by the Fourth Amendment any time that DFPS performs a search or seizure.

Definition of Imminent and Exigent

Imminent means immediate. For example, unless CPS staff believe that the child is in immediate jeopardy or sexual abuse is about to occur, an emergency removal without a court order is not warranted.

Exigent circumstance is a situation that requires immediate action, such as the example described above.

Examples of DFPS Activities That Invoke Fourth Amendment Protection

There are four primary examples of DFPS activities that invoke Fourth Amendment protection. The proper legal steps for performing any of these actions while protecting Fourth Amendment rights are as follows. Consult the relevant policy for additional guidance:

1.   Entry of a home:

  •  Obtain positive and unequivocal voluntary consent from a person legally authorized to give permission to enter. Whether a person is authorized to give consent varies with the person’s age, role, and location

OR

  •  Obtain a court order authorizing entry of the home

OR

  •  Establish that there are exigent circumstances. This means that based on the totality of the circumstances:

  •  there is reasonable cause to believe a child in the home is in imminent danger;

AND

  •  the purpose of the entry is to prevent the danger

2.   Visual examination of a child:

  •  Obtain consent from the child, a parent, or a person with legal responsibility for the child

OR

  •  Obtain a court order authorizing physical inspection of a child

3.   Transporting a child from school:

  •  Obtain consent from a parent or person with legal responsibility for the child

OR

  •  Obtain a court order authorizing transporting a child from school

OR

  •  Hold a reasonable belief that the child has been abused and probably will suffer further abuse upon the child's return home at the end of the school day

4.   Removal of a child:

  •  Obtain consent for a parental child safety placement

OR

  •  Obtain a court order for removal and conservatorship before the removal of the child

OR

  •  Establish that there are exigent circumstances that require an emergency removal without a prior court order. This means that based on the totality of the circumstances there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if he or she remains in the home.

1240 General Eligibility Criteria for Child Protective Services

CPS 96-8

Law

DFPS provides protective services to children as required by the Texas Family Code, Chapters 261 and 262, and the Human Resources Code. DFPS provides services to the families of children receiving protective services under Titles IV-A, IV-B, IV-E, and XX of the Social Security Act, the Intended Use Report, and Chapter 47 of the Human Resources Code.

Texas Family Code Chapters 261, 262

Texas Human Resources Code Ch. 47

Management Policy

To receive child protective services, the child or the child's family must be eligible at the time service is rendered.

The state plans contain the services offered by DFPS. Clients must meet the eligibility criteria for the specific service as detailed in the state plans.

Law

DFPS must not discriminate on the basis of race, color, national origin, sex, religion, or handicap in providing child protective services.

1241 Child Protective Services Priorities

CPS 96-8

Management Policy

DFPS is committed to providing at least minimally adequate protective services to all children who need them. Because of limited resources, however, DFPS must establish priorities for provision of services.

DFPS priorities for child protective services are based on the purposes and objectives of the program. (See Item 1110, Purpose and Objectives.) By establishing priorities, DFPS has provided statewide criteria for the types of situations and responsibilities DFPS staff respond to before others. The priorities also indicate which children DFPS is not required to serve and which responsibilities DFPS is not required to perform statewide.

Priorities are subject to change.

Priorities for child protective services are listed in the service sections in this handbook and are published yearly in the state plans.

1242 Request for Child Protective Services

CPS 96-8

Management Policy

Parents who believe they have abused or neglected their children may request a child protective services investigation from DFPS. Parents may request child protective services from DFPS to prevent further abuse or neglect or removal of the children.

If DFPS denies, reduces, or terminates requested service, or does not act on the request with reasonable promptness, the parent has the right to an administrative review and a fair hearing.

Cross-references: See

Item 1244, Administrative Review of Client Complaints; and

Item 1245, Fair Hearings.

1243 Right to Refuse Services and Consequences of Refusal

CPS 96-8

Rule

A parent's absence or refusal to accept services offered by [DFPS] does not change [DFPS's] legal responsibility to protect children. Parents must not be coerced or defrauded into accepting services but must be notified of the steps [DFPS] may take to protect the children if the parents refuse services.

Parents have the right to refuse services offered by [DFPS] unless a court has ordered the services.

If parents refuse to allow [DFPS] to investigate, [DFPS] may request the county or district attorney to petition the court for an order that requires the parents to allow the investigation. If the allegation of abuse or neglect or other information available to [DFPS] indicates immediate danger to the child, [DFPS] may also seek a court order to remove the child from the home. [See Section 5200, Initiation of Court-Related Services.]

DFPS Rules, 40 TAC §700.308

1244 Administrative Reviews of Client Complaints

CPS 96-8

Rule

CPS clients have the right to an administrative review of any complaint about [DFPS's] child protective services. When clients make a complaint, staff inform the clients that they may request an administrative review.

An administrative review is conducted by staff at a higher level than the worker within a reasonable time after the client requests the review.

DFPS Rules, 40 TAC §700.309

Management Policy

Cross-references: For additional information about administrative reviews, see

Item 6360, Administrative Review of Foster-Parent Concerns About New Placements;

Item 7820, Denial of Foster Group Home Applications/Closure of Certified Foster Group Homes; and

Item 7800, Administrative Review (for adoptive applicants).

1245 Fair Hearings

CPS 96-8

Rule

Child protective services clients have the right to a fair hearing if services they request are denied, reduced, or terminated, or if [DFPS] does not act on their request for services with reasonable promptness.

When a worker or supervisor informs a client that requested services have been denied, reduced, or terminated or will not be provided with reasonable promptness, the worker or supervisor must also inform the client

  •  that the client may request a fair hearing to question [DFPS] action,

  •  the procedures for requesting a fair hearing, and

  •  that the client may be represented at the hearing by others including legal counsel.

If requested, the worker must assist the client in completing Form 4800, Request for Fair Hearing.

DFPS Rules, 40 TAC §700.310

Management Policy

The worker must provide the hearing officer with necessary case record material. The reporter's identity must be deleted from case record material given to the hearing officer.

Refer to the Fair Hearings, Fraud, and Civil Rights Handbook for more information about fair hearings.

1250 Clients With Limited English Proficiency (LEP)

CPS December 8, 2003

Title VI of the of the Civil Rights Act of 1964 requires that state and local governments must ensure that their programs and activities normally provided in English are accessible to persons with limited English proficiency (LEP) and that they do not discriminate on the basis of national origin.

Definitions

Limited English Proficiency (LEP): a limitation in the ability of a person whose first language is not English to communicate in English.

LEP Clients: CPS clients whose ability to communicate in English is limited as defined above. The clients may be children, biological parents, foster caregivers, adoptive parents, or other persons deemed responsible for the care, custody, or welfare of the child.

Communicating with LEP Clients

When a client's ability to communicate in English is limited, CPS must undertake reasonable, documented efforts to provide him or her with information and services in a language that the client can understand through the use of interpreters, translators, or other identified methods.

CPS's efforts may include, but are not limited to:

  •  the recruitment and hiring of bilingual workers;

  •  the recruitment of bilingual foster caregivers and adoptive parents;

  •  the use of interpreters and translators; and

  •  the use of bilingual brochures, forms, and other printed materials.

CPS must undertake reasonable efforts to ensure that LEP clients must understand, as fully as possible, all significant CPS actions at each of the following stages and points of service:

  •  investigation of allegations of child abuse or neglect;

  •  adverse actions such as removal of a child from his home;

  •  case planning and service delivery;

  •  judicial proceedings in which the court does not itself provide bilingual or interpreter services;

  •  temporary and permanent placements outside the home; and

  •  appeal proceedings and administrative reviews.

Note: CPS's efforts to provide bilingual or interpreter services must not delay or interfere with any actions necessary to:

  •  protect a child from harm or risk of harm; or

  •  comply with legal requirements.

Ensuring Comprehension of Written Material

Notwithstanding LEP status, a client may have a limited ability to understand material written in his or her own language. When communicating CPS purposes, goals, and services to a client, caseworkers should verbally review written material with the client and the interpreter to ensure that it is fully comprehended.

Family Members / Child Victims as Translators

CPS does not use family members or friends to interpret, translate, sign, or read for LEP clients, except at the client's specific request. Child victims should not be used as translators except for brief interaction to ascertain the client's request and/or arrange requested translation services. Ideally, interpreters and translators will be professionally trained or will be a CPS staff person who is fluent in the client's preferred language.

Documentation

In IMPACT, LEP should be noted in the Person Characteristics Window in all stages of service. Documentation in the case record should include:

  •  any offer of an interpreter (whether the client accepts or rejects the offer);

  •  the use of an interpreter;

  •  the interpreter's name;

  •  the interpreter's relationship to the LEP person (if any) or professional affiliation;

  •  the use of any type of communication aids (e.g., a communication board, pictures, etc.)

  •  the caseworker's ability to communicate in the client's preferred language; and

  •  the reason an interpreter was not used.

Staff should complete the Translator Services form available on Smiley any time translation services are offered to an LEP client. Staff should ensure that the client signs the form whenever such services are refused. The Translator Services form may be used multiple times in any stage of service.

Substitute Care Placements

When CPS removes an LEP child from his or her home, staff must consider the child's language needs and assess the importance of placing him with a foster family that speaks his own language. Language is not the only factor to consider in placing the child, but it must not be neglected.

The service plan of an LEP child in substitute care must address the following issues:

  •  communication between the child and the foster family if the foster family does not speak the child's language;

  •  the availability of bilingual classes and remedial English programs at the child's school;

  •  the need for and availability of counseling services in the child's language;

  •  the need for and availability of other services in the child's language; and

  •  the availability of bilingual CPS staff or interpreters.

If the child is placed in an LEP foster family, the child's service plan must also indicate how CPS staff will communicate with the foster family. CPS must make reasonable efforts to assign bilingual workers to LEP children and LEP foster families. When it is not possible to assign a bilingual worker, staff must find other ways to communicate with the clients. Options include, but are not limited to:

  •  using other bilingual workers, staff members, or volunteers to interpret;

  •  working with outside interpreters; and

  •  working with agencies that specialize in services to families of the foster child's ethnicity.

1251 Clients With Communication Disabilities

CPS December 2007

Discrimination Against Persons With Disabilities Prohibited

The Americans with Disabilities Act (ADA) prohibits state and local government entities from discriminating against people with disabilities. An individual with a disability cannot be denied benefits or excluded from participation in a public entity’s services, programs, or activities. Therefore, CPS, as a state entity, may not discriminate on the basis of a disability when providing services, programs, or activities.

American With Disabilities Act (ADA)

Definition of a Person With a Disability

Under the ADA a person with a disability is an individual who:

  •  has a physical or mental impairment that substantially limits one or more of the individual’s major life activities;

  •  has a record of such impairment; or

  •  is regarded as having such an impairment.

For information on eligibility for CPS services, see 1240 General Eligibility Criteria.

For information on effective communication with clients for whom English is not the primary language, see 1250 Limited English Proficiency.

1251.1 Requirements for Auxiliary Aids and Services

CPS December 2007

Auxiliary aids and services are those devices or services that facilitate communication and access to services. CPS staff must furnish auxiliary aids or services as necessary to ensure effective communication for clients with hearing, vision, or speech disabilities who are being served or investigated.

CPS staff must ensure that communications with clients who have communication disabilities are as effective as communications with other clients, and that clients understand all significant CPS actions as fully as possible at each stage of service.

When emergency action must be taken to protect a child, CPS staff must provide auxiliary aids or services at the earliest possible opportunity to ensure that the client with a communication disability understands as fully as possible all actions taken by CPS.

Exception

When emergency circumstances require immediate action to protect a child from harm or risk of harm, CPS staff must not hesitate to protect the child while attempting to communicate with clients who have hearing, vision, or speech disabilities.

Efforts to provide the preferred method of communication must not delay or interfere with any actions necessary to protect a child from harm or risk of harm, or to comply with legal requirements.

Definition of Clients

Clients include children, biological parents, foster caregivers, adoptive parents, or other persons deemed responsible for the care, custody, or welfare of the child.

Which Auxiliary Aid or Service to Use

In determining which auxiliary aid or service to use, CPS staff must use the type and method of communication that is preferred or requested by the client, unless another equally effective means of communication is available.

Clients With Vision Disabilities

For clients with vision disabilities, examples of the types of aids or services that should be provided include, but are not limited to, the following:

  •  Readers

  •  Audio tapes

  •  Braille

  •  Large print

Clients Who Are Deaf or Hard of Hearing

For clients who are deaf or hard of hearing, examples of the types of aids or services that should be provided include, but are not limited to, the following:

  •  Sign language interpreters

  •  Note takers

  •  Transcription services

  •  Written or printed materials

  •  Telephone handset amplifiers

  •  Assistive listening devices

Clients With Speech Disabilities

For clients with speech disabilities, examples of the types of aids or services that should be provided include, but are not limited to, the following:

  •  Speech-to-Speech Relay

  •  Text-to-Voice Software

1251.2 Sign Language Interpreter Requirements During CPS Interventions

CPS December 2007

Prohibition Against Using Family Members, Friends, or Child Victims as Sign Language Interpreters

CPS does not use family members or friends to interpret, sign, or read for clients with a disability, except at the client’s specific request, and then only when ADA requirements are being satisfied.

Child victims may not be used as interpreters except for brief interaction to ascertain the client’s request and arrange requested interpreter services.

Victims, their family members, or friends rarely meet the impartiality requirements of a qualified interpreter as defined by the ADA.

Obtaining Qualified Interpreters

The ADA defines a qualified interpreter as one who is “able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”

When possible, CPS staff arranges to use an interpreter at the highest appropriate level available certified by:

  •  the Board for Evaluation of Interpreters (BEI); or

  •  the Registry of Interpreters for the Deaf (RID).

BEI recommends that CPS provide clients who are deaf or hard of hearing with interpreters certified at Level III, IV, or V. Using one of the recommended levels of interpreter services helps to ensure that the ADA definition of a qualified interpreter is met.

CPS staff may contact one of the DHHS program specialists listed on the DHHS Specialists page of the DARS Web site to request a referral to appropriately certified interpreters. When a client requests an interpreter or other auxiliary aid or service, CPS staff must document the request clearly and conspicuously in IMPACT and the client’s case record and include the need in any service plan throughout the life of the case.

Instances requiring interpreter services include, but are not limited to the following:

  •  Interviews

  •  Supervised visitation

  •  Permanent Planning Team meetings and other staffings

  •  Family Group Conferences

  •  Trainings and meetings involving adults who are deaf and are interested in becoming foster parents

Certified Interpreters Required for Court Hearings

Courts are required to provide interpreter services for persons who are deaf or hard of hearing during court hearings and other court proceedings.

The interpreter must hold:

  •  a Court Interpreter Certification (CIC) from BEI; or

  •  RID’s Specialty Certificate: Legal (SC:L).

Texas Government Code, Chapter 57

Contact information for current holders of the CIC is located on the BEI Interpreter Search page of the DARS Web site.

Prompting the Court to Provide an Interpreter

Although the requirement to provide an interpreter applies to the court and not to CPS, if the court has not indicated plans to provide an interpreter with the required certification CPS must request that the district attorney’s office notify the court of the requirement.

http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_1200.jsp