There are three district courts in Harris County that have original jurisdiction over cases covered by Family Code Sections Titles 3 and 5. These courts include the 313th, the 314th and the 315th Judicial District Courts. Each court is comprised of one elected district judge and one associate judge.1 These courts are organized under the Texas Government Code and have been designated by the juvenile board as juvenile courts for the county. Under TEX. GOV’T. CODE § 23.001, passed in 1979, any district court, county court or statutory county court may be given juvenile jurisdiction and may be designated by the juvenile board as one of the juvenile courts for the county. Practitioners should note that unlike family courts, juvenile courts are not required to provide a rehearing by the elected official from a ruling by the associate judge.

While Title 5 of the Family Code concerns suits affecting the parent-child relationship, Title 3 consists of the Juvenile Justice Code. Title 3 provides the statutory basis for jurisdiction over juveniles accused of committing a violation of the penal code. The Juvenile Justice Code provides a specific procedure for proceedings before juvenile courts. These procedures are in addition to any other applicable procedure under Texas law. The Juvenile Justice Code also includes Texas’ adoption of the Uniform Interstate Compact on Juveniles, an interstate law concerning the rights, remedies, and procedures for adjudicating juvenile delinquents.

Matters often fall within the juvenile court jurisdiction but also under Title 5. These matters typically involve a suit brought by the Texas Department of Family and Protective Services (“DFPS”) and are styled as in the interest of a child. These suits are filed when DFPS has determined that a child has been abused or neglected and that the safety of the child requires that the child be removed from the caregiver. Typically that caregiver is a parent. These suits usually arise after a referral is made by a physician or when a call is made to the DFPS hotline alleging that a child has been abused or neglected. When a referral is made, DFPS will investigate the claim, and if cause for removal is found, the child will be taken into care and placed in foster care. DFPS then files a Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship, and requests an emergency hearing.

The original Petition for Protection of a Child contains a sworn affidavit alleging the various grounds for removal. Each new case is assigned to one of the three juvenile courts in rotation. The court will conduct an emergency hearing and may rule on the affidavit alone.2 Within 14 days after the emergency hearing, the court must conduct a show cause hearing.3 The show cause hearing is a full evidentiary hearing and the parent or other caregiver from whom the child was removed may present evidence to challenge the removal. The show cause hearing is the first opportunity for attorneys to appear in a DFPS suit to represent the interest of a parent. Practitioners must have all witnesses available and be ready to proceed.

In suits filed by DFPS, each parent is a necessary party and thus, both parents must be served. Frequently the identity of the father of the child has not been determined, and until paternity has been established an “unknown father” must be plead. The Court must also appoint an attorney ad litem for the child and any unknown father. If either the caregiver and/or the parents are indigent, they too may be appointed counsel.

After the show cause hearing there will be a status hearing “no later than 60 days after the court renders a temporary order appointing the department as temporary managing conservator.”4 This hearing will be confined to matters related to the contents and execution of the service plan filed with the court. The service plan sets out whether the department’s goal is termination or reunification. If reunification is the goal, the plan typically describes what actions and responsibilities are necessary for the child’s parents to take to achieve return of the child.5 As a practitioner, you will be responsible for assisting your client in understanding the plan and informing the court of any issues in the plan that you or your client find unreasonable. Practitioners should also advise clients of the consequences of signing the plan.

During a Section 263.201 status hearing, the court must review the service plan filed by DFPS for reasonableness, accuracy, and compliance with the requirements of court orders and Texas law.6 A status hearing is not necessary, however, if a permanency hearing is held under Section 262.2015 before the date a status hearing is required under Section 263.201.

Not later than the 180th day after the date the court renders a temporary order appointing DFPS as temporary managing conservator of a child, the court must hold an initial permanency hearing to review the status of, and permanency plan for, the child. The purpose of this hearing is to ensure that a final order consistent with the permanency plan is rendered before the date for dismissal of the suit.7 The agency will file a permanency progress report at this hearing recommending the suit be continued or dismissed and evaluating the placement and compliance by the parents.8 Any subsequent permanency hearings prior to a final order must be held not later than the 120th day after the date of the last permanency hearing.9 The procedure for such hearings is set out in TEX. FAM. CODE § 263.306 (Vernon 2001).

Under TEX FAM. CODE § 263.401 (a) unless “the court has commenced the trial on the merits or granted an extension under Subsection (b), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent child relationship filed by the department that requests termination of the parent child relationship or requests that the department be named “conservator of the child.” Thus, suits filed by DFPS move quickly through the family courts. If the “court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child, the court may retain the suit on the court’s docket for a period not to exceed 180 days.”10

During a final hearing, the court may involuntarily terminate the parent-child relationship.11 There are 17 legal grounds upon which the court may predicate such a termination. The court must find a legal ground by “clear and convincing evidence” and find by “a preponderance of the evidence” that it is in the best interest of the child to terminate.

Included among the numerous grounds for termination under section 161 are 161.001(D) when a parent has “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well being of the child” and section 161.001 (E) when a parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well being of the child.” These have important legal consequences.12 A finding based on “D” or “E” can be used to terminate the parental rights as to another child.13

When faced with the likelihood that a client will be subject to a “D” or “E” ground termination, practitioners should advise clients that an affidavit of voluntary relinquishment under TEX. FAM. CODE § 161.103 may be the best option. If the court terminates on this basis, the client avoids the adverse effects of Section 161.001(M).

As can be seen, practice in the family courts creates a significant burden on the practitioner to be familiar with the statutory basis of this area of the law as well as the related case law. Even experienced family law specialists should not assume their experience in the family courts will qualify them for practice in this area.

Glenn H. Devlin has a solo practice focusing on family, juvenile and criminal law. He earned his law degree from South Texas College of Law in 1980.

Endnotes
1. TEX. FAM. CODE § 201.001 (Vernon 1995) 2. TEX. FAM. CODE § 262.102 (Vernon 2003) 3. TEX. FAM. CODE § 262.103 (Vernon 1995) 4. TEX. FAM. CODE § 263.201 (Vernon 2005) 5. TEX. FAM. CODE § 263.102 (Vernon 2005) 6. TEX. FAM. CODE § 263.202 (Vernon 2005) 7. TEX. FAM. CODE § 263.304 (Vernon 2001) 8.TEX. FAM. CODE § 263.303 (Vernon 2005) 9. TEX. FAM. CODE § 263.305 (Vernon 1998) 10. TEX. FAM. CODE § 263.401 (b)) 11. TEX. FAM. CODE § 161.001 (Vernon 2009) 12. TEX. FAM. CODE § 161.001 13. TEX. FAM. CODE § 161.001 (M).