ABSTRACTS OF LAW AS OF MARCH 7, 2023. SUBJECT TO CHANGE EACH LEGISLATIVE SESSION.
(c) 2021 Christopher Meyer Law Firm, PLLC All Rights Reserved The information on this web article is for general information, entertainment and educational purposes only. Nothing herein should be taken as legal advice for any individual case or situation This information is not intended to create, and receipt or viewing does not constitute, an attorney client relationship Please call (281) 845-2472 if you have any questions about this disclaimer. Sec. 261.302. CONDUCTOF INVESTIGATION. (a) The investigation may include: visit to the child’s home, interview with child may be conducted at any reasonable time and place, including the child's home or the child's school, interview with parent…. etc. Sec. 261.303. INTERFERENCE WITH INVESTIGATION; COURTORDER. (a) A person may not interfere with an investigation of a report of child abuse or neglect conducted by the department. (b) If admission to the home, school, or any place where the child may be cannot be obtained, then for good cause shown the court having family law jurisdiction shall order the parent, the person responsible for the care of the children, or the person in charge of any place where the child may be to allow entrance for the interview, examination, and investigation. Sec. 261.3031. FAILURETO COOPERATE WITH INVESTIGATION; DEPARTMENT RESPONSE. (a) If a parent or other person refuses to cooperate with the department's investigation of the allegedabuse or neglectof a child and the refusal poses a risk to the child's safety, the department shall seek assistance from the appropriate attorney with responsibility for representing the department as provided by Section 264.009 to obtain a court order as described by Section 261.303. Sec. 261.3032. INTERFERENCE WITH INVESTIGATION; CRIMINAL PENALTY. (a) A person commits an offense if, with the intent to interfere with the department's investigation of a report of abuse or neglect of a child, the person relocates the person's residence, either temporarily or permanently, without notifying the department of the address of the person's new residence or conceals the child and the person's relocation or concealment interferes with the department's investigation. 2242.2 Authority to Consent CPS August 2017 The caseworker must ensure that the person providing consent has the authority to consent. Unless there is reason to believe that a parent's rights to a child have been limited by a court order, the parent has authority to consent to the following actions: • Entering the home. • Interviewing the child. • Visually examining the child. • Transporting the child. A caseworker must attempt to obtain consent from a parent before obtaining consent from anotherperson. If a parent is not presentand has not previously denied consent for any of the above actions during the course of a current investigation, the caseworker may seek consent from another person who has the authority to consent. A person's authority to consent depends on the action the caseworker is taking. If the caseworker has questions or concerns about a person's authority to consent, the caseworker must consult with the attorney representing DFPS.
See: 2242.11 Who Has the Authority to Give Consent to Enter the Home 2243.3 Consent to Interview a Child 2244.1 Consent for Visual Examination of a Child at Home or in the Presence of a Parent or Other Person Responsible 2244.2 Consent for Visual Examination of a Child at School 2245Transporting a Child Appendix 2000-1: Summary of Consent Requirements
2244.31 Consent to Interview a Child at Home CPS August 2017 When at an alleged child victim's home or when a parent or person responsible for the child is present, the caseworker must obtain consent from the parent or person responsible before interviewing the child. When a parent or person responsible is not present, the caseworker may obtain consent from the child if the caseworker determines that the child has capacity to give consent. See 2241.11 Determining Whether a Child Has the Capacity to Consent. If the child has been left in the care of another child, the caseworker must not seek consent from the other child, even if the parent has not previously denied consent. The caseworker must not seek consent from an adult resident of the home who has not been left responsible for the child. If Consent is Denied If a parent or person responsible denies consent, the caseworker must: • seek a court order to interview the child; or • remove the child if exigent circumstances exist and interview the child after removal. If a parent has previously denied consent during the current investigation, the caseworker must not request consent from any other person, including the child or another person left responsible for the child. Parent Refuses to Allow a Child to be Interviewed In a two-parent household, if one parent refuses to allow the caseworker to interview a child, the caseworker must not interview the child without a court order or exigent circumstances, regardless of the location. If the parents do not reside together, the caseworker may rely on the consent of either parent unless the caseworker has reason to believe that the parent's rights to the child have been limited by a court order. If the caseworker cannot gain admission to the home or place where the child is located, the caseworker must: • seek a court order requiring the parent to allow entrance for the interview, examination, and investigation; or Texas Family Code §§261.303(b)External Link,261.3031External
Link, 261.3032External Link • remove the child if exigent circumstances exist. 2244.32 Consent to Interview a Child at School CPS August 2017 A caseworker must not interview a child at school if the parent has denied consent for the child to be interviewed during the current investigation. The requirements for obtaining consent to interview a child at school differ based on whether the school is or is not under the jurisdiction of the Texas Education Agency (TEA). If the caseworker does not know whether the school is under TEA jurisdiction, the caseworker must check TEA's website External Link before visiting the school. Conducting Interviews at Schools Under TEA Jurisdiction If the parent has not denied consent and the child attends a school under TEA jurisdiction, the caseworker must: • on arrival, notify school personnel of the caseworker's intent to interview the child; • obtain parental consent if a parent is present at the school; and • if the parentis not present, interview the child unless the child objects. Conducting Interviews at Schools Not Under TEA Jurisdiction A person in a school not under TEA jurisdiction has the same protections as a person in a home. If a school is not under TEA jurisdiction, and the parent has not denied consent during the current investigation, the caseworker may only enter the main office without consent. The caseworker must obtain consent to enter any other portion of the school from appropriate school personnel, as determined by the school. The caseworker must also obtain: • parental consent to interview the child if the parentis present; or • consent from appropriate school personnel to interview the child if a parent is not present.
If Consent is Denied
If school personnel deny consent to enter the school and interview the child, the caseworker must attempt to contact the parent to obtain consent. If the parent denies consent, the caseworker must consult with the supervisor to determine whether to:
• pursue a court order to interview the child; or
• remove the child due to exigent circumstances and interview the child after removal.
2244.4 Conducting the Interview
CPS October 2019
The caseworker must attempt to interview a child in private without any third party present, unless the child needs an interpreter or the caseworker determines that having another person present would be appropriate.
However, if a parent denies consent for the child to be interviewed alone, the caseworker must do one of the following:
• Proceed with the interview in the presence of a parent or a third party agreed to by the parent.
• Obtain a court order to interview the child alone.