Your Rights When Texas CPS Contacts You (Family Code §261.307)

The short answer

When DFPS opens an investigation, the caseworker must, at first contact, give you a short written summary of how investigations work and tell you out loud about your rights Tex. Fam. Code §261.307(a). Those rights include having a lawyer, recording the interview, and refusing to let the investigator into your home or to interview your child without a court order Tex. Fam. Code §261.307(a). If you say no, DFPS can ask a judge for an order Tex. Fam. Code §261.303(b). If DFPS skips the required notices, information it gets from you cannot be used against you in any civil proceeding Tex. Fam. Code §261.307(e).

What does CPS have to give me in writing?

DFPS must give a written summary to a parent or the alleged perpetrator at first contact Tex. Fam. Code §261.307(a). (The alleged perpetrator is the person accused of the abuse or neglect.) The summary must be brief, easy to understand and in a language you understand. If you cannot read, it must be read to you Tex. Fam. Code §261.307(a). It must explain Tex. Fam. Code §261.307(a):

• how DFPS investigates, including when it would ask a court to remove a child;
• that DFPS must refer every report to law enforcement, which decides separately whether a crime occurred;
• that anything you say to anyone may be used against you in a criminal case, to remove a child, or to end your legal relationship with a child;
• your right to file a complaint or ask for a review of DFPS's findings;
• your right to review the investigation records, unless that would put a criminal investigation or the child's safety at risk;
• your right to seek a lawyer;
• how to get access to your child if the child is removed; and
• the known allegations being investigated.

DFPS policy says that before interviewing you, the caseworker gives you Form 3010 Notification of Rights and A Guide to a Child Protective Investigation, and goes over both out loud DFPS CPS Handbook §2248.11. You will be asked to sign Form 3010. If you refuse, the caseworker marks a box showing that, and a copy is left with you or your lawyer DFPS CPS Handbook §2248.11. The law also requires DFPS to give you or your lawyer a true and correct copy of the signed form Tex. Fam. Code §261.307(d).

If new allegations come in during an open investigation, the caseworker must go through these steps again DFPS CPS Handbook §2248.11. If DFPS first contacts you after a Family-Based Safety Services (FBSS) case (the family preservation, or FPR, stage) opens, the FBSS caseworker must do the same DFPS CPS Handbook §12216 DFPS CPS Handbook §3100.

What rights must CPS tell me about out loud?

The caseworker must tell you that you have the right to Tex. Fam. Code §261.307(a):

• not speak with anyone from DFPS without your lawyer present;
• get help from a lawyer;
• have a court-appointed lawyer if you are an indigent parent (one who cannot afford a lawyer) and DFPS asks a court for an order in a suit to take possession of a child under Family Code §262.101 or §262.105 Tex. Fam. Code §262.101 Tex. Fam. Code §262.105, or for an order requiring you to take part in services under §264.203;
• record any interaction or interview, knowing the recording may have to be shared with DFPS, law enforcement or another party under a court order;
• refuse to let the investigator enter your home or interview your child without a court order;
• have a lawyer present before you let the investigator enter your home or interview your child;
• refuse consent to release any medical or mental health records;
• refuse consent to any medical or psychological exam of your child;
• refuse to take a drug test; and
• talk with a lawyer before agreeing to any proposed voluntary safety plan.

The investigator must document that this notice was given Tex. Fam. Code §261.307(c). See Your Right to a Lawyer in a Texas CPS Case.

Do I have to let CPS into my home or talk to my child?

You can say no, and DFPS must tell you so Tex. Fam. Code §261.307(a). DFPS policy says a caseworker may enter a home only with consent, exigent circumstances or a court order DFPS CPS Handbook §2243. Exigent circumstances exist only when the caseworker and supervisor find reasonable cause to believe a child is in imminent danger of physical or sexual abuse, and entry is to protect the child DFPS CPS Handbook §2243.2. If the child would be safe during a delay to get a court order, they do not exist DFPS CPS Handbook §2243.2.

Other DFPS policies:

• If one parent says yes but the other parent expressly refuses, the caseworker must not enter without a court order or exigent circumstances DFPS CPS Handbook §2243.1.
• You can withdraw consent at any time, and the caseworker must stop right away DFPS CPS Handbook §2242.4.
• The caseworker must never coerce or threaten you to get consent DFPS CPS Handbook §2242.3. The caseworker may tell you about next steps, such as asking for a court order DFPS CPS Handbook §2242.3.
• In FBSS, the caseworker must ask to enter every time, even if a court ordered the family into FBSS. If you withdraw consent, the caseworker must leave DFPS CPS Handbook §12211.
• A caseworker must not interview your child at school if you already denied consent in this investigation DFPS CPS Handbook §2244.32. Otherwise, at a school under Texas Education Agency jurisdiction, a caseworker may interview your child without you there, unless the child objects DFPS CPS Handbook §2244.32.

Saying no has consequences. If a refusal poses a risk to the child's safety, DFPS must work with its lawyer to seek a court order Tex. Fam. Code §261.3031. If you deny consent to interview your child, policy says the caseworker must seek a court order DFPS CPS Handbook §2244.31, or remove the child if exigent circumstances exist DFPS CPS Handbook §2244.31. See Order in Aid of Investigation: When DFPS Asks a Court for Access (Family Code §261.303).

Can I record my interview with CPS?

Yes. DFPS must tell you of your right to record any interaction or interview Tex. Fam. Code §261.307(a). Before interviewing an alleged perpetrator, DFPS must tell that person, out loud and in writing, that Tex. Fam. Code §261.3027:

• they may make an audio or video recording, but may not record in any other way;
• their recording may be subject to subpoena (a demand to produce it) under a court order; and
• they may ask for a copy of DFPS's current recording policy.

A recording of DFPS's interview with an alleged perpetrator may not be posted online in a way that could identify anyone in it Tex. Fam. Code §261.3027. DFPS policy for school and Home and Community-based Services investigations gives livestreaming on social media as an example of recording that is not allowed DFPS CPS Handbook §2248.3.

The caseworker may record too, for example when you are recording. The caseworker needs a supervisor's approval, unless circumstances prevent it, and must tell you first DFPS CPS Handbook §2248.2.

Before the interview, DFPS must also tell an alleged perpetrator in writing that they may ask for an administrative review of the findings Tex. Fam. Code §261.3091.

What if I refuse a drug test, or CPS skipped my rights?

When a drug test is appropriate and a parent refuses, policy says the caseworker records the refusal and talks with a supervisor DFPS CPS Handbook §3336. The supervisor may recommend legal action if there is enough concern for the child's safety DFPS CPS Handbook §3336. If you will not release your child's records or allow an exam, a court can order it if it has probable cause to believe that is necessary to protect the child Tex. Fam. Code §261.303(c). See CPS Drug Testing in Texas: What DFPS Policy Says.

If you did not get the verbal notice and written summary, information obtained from you cannot be used against you in any civil proceeding. That also covers other information DFPS would not have found without it Tex. Fam. Code §261.307(e).

You can also complain. If you ask about your case status, or complain about DFPS staff or policy, DFPS must do an informal review within 14 days after receiving it Tex. Fam. Code §261.309(b).

What the law says

If a person who is the subject of an investigation does not receive the verbal notification and written summary required by this section, any information obtained from the person, and any other information that would not have been discovered without that information, is not admissible for use against the person in any civil proceeding.

In plain words: if DFPS skipped the required notices, what it learned from you cannot be used against you in a civil case.

The department shall adopt a form for the purpose of verifying that the parent or other person having legal custody of the child received the verbal notification and written summary required by this section. The department shall provide a true and correct copy of the signed form to the person who is the subject of the investigation or that person's attorney, if represented by an attorney.

In plain words: you or your lawyer must get a copy of the signed form.

Questions to ask a lawyer

• Should I talk to the caseworker, and can you be there when I do?
• Should I sign Form 3010 or any other paper the caseworker gives me?
• What could happen if I say no to a home visit, an interview of my child, or a drug test?
• Do I qualify for a court-appointed lawyer, and at what point?

Related

• The Texas CPS Investigation Process, Step by Step (Family Code §§261.301–261.302)
• Order in Aid of Investigation: When DFPS Asks a Court for Access (Family Code §261.303)
• Your Right to a Lawyer in a Texas CPS Case
• CPS Drug Testing in Texas: What DFPS Policy Says
• How to Ask for an ARIF (Administrative Review of CPS Findings) in Texas
• How to Get Your CPS Case Records in Texas