Order in Aid of Investigation: When DFPS Asks a Court for Access (Family Code §261.303)

The short answer

An order in aid of investigation is a court order under Family Code §261.303. It makes a parent or other person let DFPS in for the interview, examination and investigation Tex. Fam. Code §261.303(b), or orders a child's records released or an exam done Tex. Fam. Code §261.303(c). DFPS may ask for one when it is refused entry, records or an exam DFPS CPS Handbook §5110. The order must state the judge's findings about the evidence Tex. Fam. Code §261.303(g). It is about access. It is not an order to remove a child DFPS CPS Handbook §2294.

When does DFPS ask for this kind of order?

DFPS policy says it may ask for an order in aid of investigation when DFPS CPS Handbook §5110:

• a parent, caregiver or person in charge of the home, school or other place where the child is will not let DFPS in;
• a parent or caregiver will not consent to release of the child's prior medical, psychological or psychiatric records; or
• a parent or caregiver will not consent to a medical, psychological or psychiatric exam of the child.

Policy also says that if a parent or adult in the home refuses to cooperate, DFPS shall seek this kind of order DFPS CPS Handbook §2243.3. The law says that if a refusal poses a risk to the child's safety, DFPS must work with its lawyer to get one Tex. Fam. Code §261.3031. Failing to report to the investigating agency within a reasonable time after proper notice counts as refusing to cooperate Tex. Fam. Code §261.3031.

Before asking, the caseworker needs a supervisor's approval DFPS CPS Handbook §5111, and then a program director's approval DFPS CPS Handbook §5111. The caseworker writes an affidavit, a sworn written statement of facts, to show the court there is cause for the order DFPS CPS Handbook §5112. It must explain how and when DFPS was refused, and why the access would help the investigation DFPS CPS Handbook §5112. DFPS's lawyer attaches it to a motion filed with the court DFPS CPS Handbook §5112.

What must the judge find?

To order entry to a home, school or other place, the court must have either Tex. Fam. Code §261.303(b):

• good cause to believe the child is in imminent danger of being subjected to aggravated circumstances; or
• probable cause to believe entry is necessary to protect the child from other abuse or neglect.

Good cause and probable cause are legal standards the judge applies. Ask a lawyer what they mean for your facts.

Aggravated circumstances are listed in Family Code §262.2015(b). Examples include a parent abandoning a child without identification Tex. Fam. Code §262.2015, a child suffering serious bodily injury or sexual abuse by the parent or with the parent's consent Tex. Fam. Code §262.2015, certain serious crimes by the parent against a child Tex. Fam. Code §262.2015, and a parent who must register as a sex offender Tex. Fam. Code §262.2015. DFPS policy defines imminent danger as an immediate threat to a child's physical health or safety, or sexual abuse that is about to happen DFPS CPS Handbook, Definitions of Terms (Imminent Danger).

For a child's records or an exam, the court must have probable cause to believe that releasing the records or doing the exam is necessary to protect the child Tex. Fam. Code §261.303(c). Every entry, records or exam order must include the court's findings about whether the evidence was enough Tex. Fam. Code §261.303(g).

Will I get notice and a hearing?

Usually, yes. The hearing may not be ex parte unless the court has probable cause to believe there is no time for a full hearing, consistent with the child's physical health or safety Tex. Fam. Code §261.303(f). An ex parte hearing is one with only DFPS present DFPS CPS Handbook §5110.

DFPS policy says that if the caseworker knows a lawyer represents you, your lawyer must be told about the hearing DFPS CPS Handbook §5113. If the order is granted, you must be given notice of it when it is carried out DFPS CPS Handbook §5113. If you are a party, the court must give you a copy of the order when you ask Tex. Fam. Code §261.303(h).

DFPS must tell you that you have the right to have a lawyer present before you let an investigator into your home or let them interview your child Tex. Fam. Code §261.307(a). See Your Right to a Lawyer in a Texas CPS Case.

Can DFPS get my own medical or mental health records?

A different section covers a parent's own records. The investigation may look into whether a parent or caregiver has a history of medical or mental illness Tex. Fam. Code §261.305. If you do not consent to an exam or to DFPS seeing your records, the family court, for good cause shown, shall order it on terms the court sets Tex. Fam. Code §261.305. You are entitled to notice and a hearing Tex. Fam. Code §261.305. If the court finds you indigent (unable to afford a lawyer), it must appoint a lawyer for you at that hearing Tex. Fam. Code §261.305. Giving DFPS this access does not waive confidentiality Tex. Fam. Code §261.305.

Some records reach DFPS with no order at all. A person or medical facility that makes a report must release records directly related to the suspected abuse or neglect, without parental consent or a court order Tex. Fam. Code §261.303(d). Anyone with confidential information that helps locate or identify the family, including a utility company, must give it to DFPS on request Tex. Fam. Code §261.303(e).

What does the order allow, and what does it not allow?

• It allows access. An entry order requires you to allow entrance for the interview, examination and investigation Tex. Fam. Code §261.303(b). A records or exam order sets the times and places Tex. Fam. Code §261.303(c).
• It is not a removal order. DFPS policy lists an order to aid an investigation as a different type of legal action from conservatorship of a child or court-ordered services DFPS CPS Handbook §2294. Removal happens under Chapter 262 Tex. Fam. Code §261.302(d). It requires approvals plus a court order or exigent circumstances DFPS CPS Handbook §2247.
• Police permission does not cover CPS. Even if law enforcement has consent or a court order to enter, the caseworker needs separate consent or a court order DFPS CPS Handbook §2243.1.
• Interference is not allowed. A person may not interfere with a DFPS investigation Tex. Fam. Code §261.303(a). It is a crime to move without giving DFPS your new address, or to hide the child, with intent to interfere, if that interferes with the investigation Tex. Fam. Code §261.3032. It is a Class B misdemeanor Tex. Fam. Code §261.3032.
• If the order is denied. DFPS policy has a closing code for when a parent will not cooperate, safety cannot be assessed, and DFPS's lawyer or the judge denied the order DFPS CPS Handbook §2294.

What the law says

If admission to the home, school, or any place where the child may be cannot be obtained, 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 if the court: (1) has good cause to believe that the child is in imminent danger of being subjected to aggravated circumstances as described by Section 262.2015 (b); or (2) has probable cause to believe that admission is necessary to protect the child from abuse or neglect not described by Subdivision (1).

In plain words: if DFPS cannot get in, the judge must order entry when it finds good cause (aggravated circumstances) or probable cause.

A hearing for an order under this section may not be ex parte unless the court has probable cause to believe there is no time, consistent with the physical health or safety of the child, for a full hearing.

In plain words: you normally get a full hearing. A one-sided hearing is allowed only when there is no time for one.

A court order described by Subsection (b) or (c) must include the court's findings regarding the sufficiency of evidence supporting the order.

In plain words: the order must say why the evidence was enough.

Questions to ask a lawyer

• Has DFPS filed a motion for an order in aid of investigation, and when is the hearing?
• Can we see the caseworker's affidavit before the hearing?
• Should I agree to the visit or interview instead of going to a hearing?
• What exactly does the order let DFPS do, and when does it end?
• Do I qualify for a court-appointed lawyer for this hearing?
• What happens if I do not follow the order?

Related

• The Texas CPS Investigation Process, Step by Step (Family Code §§261.301–261.302)
• Your Rights When Texas CPS Contacts You (Family Code §261.307)
• Your Right to a Lawyer in a Texas CPS Case
• Court-Ordered Services in Texas CPS Cases (Family Code §264.203)
• How to Get Your CPS Case Records in Texas