2000 Intake, Investigation, and Assessment
2100 Processing Reports of Abuse or Neglect
CPS August 2009
CPS accepts and acts on reports alleging that a child in Texas is being abused or neglected by the:
• child's parents (or other legally responsible person);
• child's family;
• child's household members; or
• staff or volunteers at the child's public or private school.
Reports of abuse or neglect are made to the DFPS Statewide Intake (SWI) Division at 1 (800) 252-5400. SWI accepts calls toll-free, 24 hours a day, every day, from anywhere in the nation.
DFPS Rules, 40 TAC §700.504
The primary purpose of accepting and acting on reports of abuse or neglect is to protect the child. SWI's specialized intake staff gather information to determine whether a circumstance warrants an investigation by CPS.
CPS investigations are civil in nature.
CPS investigation staff assess the child's:
• immediate safety; and
• risk of abuse or neglect in the future.
The procedures that CPS uses to respond to a report vary, depending on the safety concerns and level of risk in the family.
CPS staff complete the following tasks during intake, investigation, and assessment:
1. Receive, assess, and screen reports of child abuse and neglect;
2. Investigate reports to determine if there is a preponderance of evidence that children have been abused or neglected, and if so, by whom;
3. Assess how well the child and the family function to determine whether there is a reasonable likelihood that the child will be abused or neglected in the foreseeable future;
4. Provide immediate or short-term protection to children who need it and determine the need for protective services after the investigation;
5. Refer the family to needed community services during or after the investigation, including services to meet the child’s educational, physical health, or mental health needs.
2110 Definitions of Abuse and Neglect and Authority
2111 Definitions
2112 Primary Statutory Definitions
CPS October 2021
The principal governing legislation for CPS intake and investigation is Chapter 261 of the Texas Family Code (TFC). This chapter's definitions of abuse, neglect, and the person responsible for a child's care, custody, or welfare describe the areas of primary concern in CPI investigations. These definitions are further defined in the Texas Administrative Code (TAC), Title 40, Part 19, Chapter 707.453 – 707.473. The definitions follow below.
2113 Statutory Definitions of Child Abuse and Neglect
2113.1 Definitions of Abuse
CPS October 2021
DFPS divides abuse into six types.
Emotional Abuse (EMAB)
Emotional abuse occurs when one or more of the following is true:
- A child suffers a mental or emotional injury that results in an observable, material impairment in the child’s growth, development, or psychological functioning.
- A person or persons cause or permit a child to be in a situation in which the child suffers a mental or emotional injury that results in an observable, material impairment in the child’s growth, development, or psychological functioning.
- A person or persons currently use a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in mental or emotional injury to a child.
Texas Family Code §261.001(1)(A)
Texas Family Code §261.001(1)(B)
Texas Family Code §261.001(1)(I)
Forced or Coerced Marriage (FMAB)
Forced or coerced marriage abuse occurs when a person or persons force or coerce a child to get married or to marry a specific person.
Texas Family Code §261.001(1)(M)
Labor Trafficking (LBTR)
Labor trafficking occurs when a person or persons do one or both of the following:
- Knowingly cause, permit, encourage, engage in, or allow a child to be trafficked in a manner punishable as an offense under §20A.02(a)(5) or (6), Penal Code.
- Fail to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under §20A.02(a)(5) or (6), Penal Code.
Texas Family Code §261.001(1)(L)
Physical Abuse (PHAB)
Physical abuse occurs when one or more of the following is true:
- A child suffers a physical injury that results in substantial harm to the child, or there is a genuine threat of substantial harm from physical injury to the child. Both include an injury that does not logically match the history or explanation given. Both exclude an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm.
- A person or persons fail to make a reasonable effort to prevent an action by another person that results in physical injury causing substantial harm to a child.
- A person or persons currently use a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in physical injury to a child.
- A person or persons cause, expressly permit, or encourage a child to use a controlled substance, as defined by Chapter 481, Health and Safety Code.
Texas Family Code §261.001(1)(C)
Texas Family Code §261.001(1)(D)
Texas Family Code §261.001(1)(I)
Texas Family Code §261.001(1)(J)
Sex Trafficking (SXTR)
Sex trafficking occurs when a person or persons do one or more of the following:
- Knowingly cause, permit, encourage, engage in, or allow a child to be trafficked in a manner punishable as an offense under §20A.02(a)(7) or (8), Penal Code.
- Fail to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under §20A.02(a)(7) or (8), Penal Code.
- Compel or encourage a child to engage in sexual conduct that is an offense under §20A.02(a)(7) or (8), Penal Code (trafficking of persons), §43.02(b), Penal Code (prostitution), §43.021 (solicitation of prostitution) or §43.05(a)(2), Penal Code (compelling prostitution).
Texas Family Code §261.001(1)(L)
Texas Family Code §261.001(1)(G)
Sexual Abuse (SXAB)
Sexual abuse occurs when one or more of the following is true:
- A child experiences sexual conduct harmful to the child’s mental, emotional, or physical welfare, including conduct that is an offense under §21.02, Penal Code (continuous sexual abuse of a young child or disabled individual), §21.11, Penal Code (indecency with a child), §22.011, Penal Code (sexual assault), or §22.021, Penal Code (aggravated sexual assault).
- A person or persons fail to make a reasonable effort to prevent sexual conduct harmful to a child.
- A person or persons compel or encourage a child to engage in sexual conduct as defined by §43.01, Penal Code.
- A person or persons cause, permit, encourage, engage in, or allow the photographing, filming, or depicting of a child, if the person or persons knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by §43.21, Penal Code) or pornographic.
- A person or persons cause, permit, encourage, engage in, or allow a sexual performance by a child, as defined by §43.25, Penal Code.
Texas Family Code §261.001(1)(E)
Texas Family Code §261.001(1)(F)
Texas Family Code §261.001(1)(G)
Texas Family Code §261.001(1)(H)
Texas Family Code §261.001(1)(K)
2113.2 Definitions of Neglect
CPS October 2021
The Texas Legislature established the overall definition of neglect in Texas Family Code §261.001(4). The statute defines neglect as an act or failure to act by a person responsible for the child ’s care, custody, or welfare evidencing the person’s blatant disregard for the consequences of the act or failure to act that results in harm to the child or that creates an immediate danger to the child’s physical health or safety. DFPS has further divided neglect into five types.
Abandonment (ABAN)
Abandonment refers to a parent, guardian, or managing or possessory conservator of a child leaving the child in a situation where the child would be exposed to an immediate danger of physical or mental harm. In such cases, the caregiver leaves without arranging the necessary care for the child, with no intent to return.
Texas Family Code §261.001(4)(A)(i)
Neglectful Supervision (NSUP)
Neglectful supervision is any of the following:
- Placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities, and that results in bodily injury or an immediate danger of harm to the child.
- Placing a child in or failing to remove the child from a situation in which the child would be exposed to an immediate danger of sexual conduct harmful to the child.
- Placing a child in or failing to remove the child from a situation in which the child would be exposed to acts or omissions that constitute abuse under Subdivision (1)(E), (F), (G), (H), or (K) committed against another child.
Texas Family Code §261.001(4)(A)(ii)(a)
Texas Family Code §261.001(4)(A)(ii)(d)
Texas Family Code §261.001(4)(A)(ii)(e)
Medical Neglect (MDNG)
The failure to seek, obtain, or follow through with medical care for a child resulting in or presenting an immediate danger of death, disfigurement, or bodily injury. The failure could also result in an observable and material impairment to the growth, development, or functioning of the child.
Texas Family Code §261.001(4)(A)(ii)(b)
Physical Neglect (PHNG)
The failure to provide a child with the food, clothing, or shelter necessary to sustain the life or health of the child. This excludes failure caused primarily by financial inability unless relief services had been offered and refused.
Texas Family Code §261.001(4)(A)(ii)(c)
Refusal to Assume Parental Responsibility (RAPR)
The person responsible for a child’s care, custody, or welfare fails to permit the child to return home without arranging for the necessary care after the child has been absent for any reason. This includes having been in residential placement or having run away.
Texas Family Code §261.001(4)(A)(iii)
Exclusion to Neglect
It is not neglect if a person responsible for a child’s care, custody, or welfare does any of the following:
- Refuses to permit the child to remain in or return to the child’s home, when the following are true:
- The child has a severe emotional disturbance.
- The person’s refusal is based solely on the person’s inability to obtain mental health services necessary to protect the safety and well-being of the child.
- The person has exhausted all reasonable means available to the person to obtain the mental health services necessary to protect the safety and well-being of the child.
- Obtains an opinion from more than one medical provider relating to the child’s medical care, transfers the child’s medical care to a new medical provider; or transfers the child to another health care facility.
- Allows the child to engage in independent activities that are appropriate and typical for the child’s level of maturity, physical condition, developmental abilities or culture.
Texas Family Code §261.001(4)(B)
2114 Statutory Definition of Person Responsible for Child's Care, Custody, or Welfare
CPS September 2002
Law
(5) "Person responsible for a child's care, custody, or welfare" means a person who traditionally is responsible for a child's care, custody, or welfare, including:
(A) a parent, guardian, managing or possessory conservator, or foster parent of the child;
(B) a member of the child's family or household as defined by Chapter 71 of this (TFC) code;
(C) a person with whom the child's parent cohabits;
(D) school personnel or volunteers at the child's school; or
(E) personnel or a volunteers at a public or private child-care facility that provides services for the child or at a public or private residential institution or facility where the child resides.
Texas Family Code §261.001(5)
2115 Terms Used in Primary Statutory Definitions
CPS 98-1
Rule
Absent parent — a parent [not in the home] who is not primarily responsible for the child's care on an ongoing basis because of a divorce, separation, incarceration, or for some other reason.
Accident — An unforeseen event that causes or threatens physical injury despite prudent efforts to avoid the risk of injury.
Causing, permitting, encouraging, engaging in, or allowing the photographing — A condition of the statutory definition of sexual abuse. It is met whether or not the child participates voluntarily.
DFPS Rules, 40 TAC §700.501(1)-(3) (Brackets added.)
Law
Child or Minor — A person under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes. In the context of child support, "child" includes a person over 18 years of age for whom a person may be obligated to pay child support.
Texas Family Code §101.003
Rule
Compelling or encouraging the child to engage in sexual conduct — A condition of the statutory definition of sexual abuse. It is met whether the child actually engages in sexual conduct or simply faces a substantial risk of doing so.
DFPS Rules, 40 TAC §700.501(4)
Law
Family — Individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the biological parents of the same child, without regard to marriage, and a foster child and foster parent, whether or not those individuals reside together.
Texas Family Code §71.003
Rule
Note: Consanguinity means related by blood or adoption. Affinity means related by an existing marriage.
DFPS Rules, 40 TAC §700.502
Genuine threat — A verbal or behavioral expression of intent that appears true, likely, or believable. A substantial risk. Actions including, but not limited to, choking, suffocating, or shaking a child, or hitting a child on the head.
DFPS Rules, 40 TAC §700.501(5)
Management Policy
Note: Consider the following factors to assess a threat (Apply them to determine if a threatened injury would result in substantial harm if it actually occurred.):
1. the extent and severity of the threatened injury;
2. the location of the threatened injury on the child's body;
3. the child's age;
4. the child's ability to sustain the threatened injury without substantial harm, in light of the child's physical condition, psychological functioning, and level of maturity;
5. the frequency and duration of similar incidents;
6. any previous history of abuse or neglect; and
7. the way the threatened injury would occur.
Rule
Guardian — Anyone named as "guardian of the person of a child" by a probate court order.
DFPS Rules, 40 TAC §700.501(6)
Law
Household — [The Texas Family Code defines household as] a unit composed of persons living together in the same dwelling, whether or not they are related to each other.
Texas Family Code §71.005 (Brackets added.)
Rule
Note: During the receipt and investigation of reports of child abuse and neglect, [DFPS] treats an unrelated person who resides elsewhere or whose place of residence cannot be determined as a member of the household if the person
A. is at least 10 years old; and
B. either
i. has regular free access to the household; or
ii. when in the household dwelling, takes care of or assumes responsibility for children in the household.
DFPS Rules, 40 TAC §700.501(7)
Management Policy
This clarification regarding unrelated persons applies to boyfriends and girlfriends of household members and to baby sitters, when they are in the home.
Rule
Managing or possessory conservator — A person responsible for a child as the result of a district court order pursuant to §153 of the Texas Family Code.
Necessary to sustain the life or health of the child — A condition of the statutory definition of physical neglect. It is met if the failure to provide food, clothing, or shelter results in an observable and material impairment to the child's growth, development, or functioning, or in a substantial risk of such an observable and material impairment.
DFPS Rules, 40 TAC §700.501(9)-(10)
Texas Family Code Ch. 153
Law
Obscene — Material or a performance that
A. the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
B. depicts or describes
i. patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
ii. patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
C. taken as a whole, lacks serious literary, artistic, political, and scientific value.
Texas Penal Code §43.21(a)(1)
Rule
Observable and material impairment — Discernible and substantial damage or deterioration.
DFPS Rules, 40 TAC §700.501(11)
Law
Parent — The mother, a man presumed to be the biological father or who has been adjudicated to be the biological father by a court of competent jurisdiction, or an adoptive mother or father. The term does not include a parent as to whom the parent-child relationship has been terminated.
Texas Family Code §101.024
Management Policy
Note: CPS distinguishes between the terms parent and absent parent. Unless otherwise stated, parent refers to the parent or parents primarily responsible for a child's care, custody, or welfare on an ongoing basis.
Parent/caretaker — Synonymous with person responsible for a child's care, custody, or welfare.
Rule
Pornographic — Containing an image that depicts a child under 18 at the time the image was made, who is involved in, performing, or simulating a sexually oriented act.
Reasonable discipline . . . that does not expose the child to a substantial risk of harm — Correction of a child's behavior that does not result in or risk substantial harm from physical injury.
Reasonable effort to prevent — Actions that an ordinary and prudent person would take to stop an event from occurring.
DFPS Rules, 40 TAC §700.501(12)-(14)
Management Policy
Sexual conduct — Sexual conduct includes, but is not limited to, any of the following:
Law
• Sexual contact — Any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.
Texas Penal Code §43.01(3)
Management Policy
Note: Sexual contact includes, but is not limited to, touching the clothed or unclothed body directly or with an object.
Law
• Sexual intercourse — Any penetration of the female sex organ by the male sex organ.
Texas Penal Code §43.01(5)
· Deviate sexual intercourse — Any contact between the genitals of one person and the mouth or anus of another person.
Texas Penal Code §43.01(1)
Rule
Sexual assault — Any sexually oriented act or practice that results in harm or in substantial risk of harm to a child's growth, development, or psychological functioning.
DFPS Rules, 40 TAC §700.501(15)
Sodomy — Anal or oral copulation with another person or an animal.
DFPS Rules, 40 TAC §700.501(16)
Incest — Any sexually oriented practice with a child by a person who knows or should know that he or she and the child are related by consanguinity or affinity.
DFPS Rules, 40 TAC §700.501(8)
Substantial harm — Real and significant physical injury or damage to a child that includes, but is not limited to, bruises, cuts, welts, skull or other bone fractures, brain damage, subdural hematoma, internal injuries, burns, scalds, wounds, poisoning, human bites, concussions, and dislocations and sprains.
DFPS Rules, 40 TAC §700.501(17)
Management Policy
Note: Consider the following factors to determine if an injury is substantial:
1. the extent and severity of injury (size, number, depth, extent of discoloration, and so forth);
2. the location of the injury on the child's body;
3. the child's age;
4. the child's ability to sustain the injury without substantial harm, in light of the child's physical condition, psychological functioning, and level of maturity;
5. the frequency and duration of similar incidents;
6. any previous history of abuse or neglect; and
7. the way the injury occurred.
Rule
Substantial risk — Real and significant possibility or likelihood.
DFPS Rules, 40 TAC §700.501(18)
Management Policy
Note: Consider the following factors to assess substantial risk:
1. the child's age;
2. the child's physical condition, psychological functioning, and level of maturity;
3. any previous history of abuse or neglect;
4. the frequency and duration of similar incidents;
5. the physical condition, psychological functioning, and level of maturity of the person putting the child at risk; and
6. any signs of danger or hazard in the child's environment.