By: Gates H.B. No. 127
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to procedures in certain suits affecting the parent-child
  relationship filed by the Department of Family and Protective
  Services.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 262.101, Family Code, is amended to read
  as follows:
         Sec. 262.101.  FILING PETITION BEFORE TAKING POSSESSION OF
  CHILD. (a) An original suit filed by a governmental entity that
  requests permission to take possession of a child without prior
  notice and a hearing must be supported by an affidavit sworn to by a
  person with personal knowledge and stating facts sufficient to
  satisfy a person of ordinary prudence and caution that:
               (1)  there is an immediate danger to the physical
  health or safety of the child or the child has been a victim of
  neglect or sexual abuse;
               (2)  continuation in the home would be contrary to the
  child's welfare;
               (3)  there is no time, consistent with the physical
  health or safety of the child, for a full adversary hearing under
  Subchapter C; [and]
               (4)  the child would not be adequately protected in the
  child's home with an order for the removal of the alleged
  perpetrator under Section 262.1015 or 262.1016 or a protective
  order issued under Title 4;
               (5)  placing the child with a relative or designated
  caregiver or with a caregiver under a parental child safety
  placement agreement authorized by Subchapter L, Chapter 264:
                     (A)  was offered but refused;
                     (B)  was not possible because there was no time,
  consistent with the physical health or safety of the child and the
  nature of the emergency, to conduct the caregiver evaluation; or
                     (C)  would pose an immediate danger to the
  physical health or safety of the child; and
               (6)  reasonable efforts, consistent with the
  circumstances and providing for the safety of the child, were made
  to prevent or eliminate the need for the removal of the child.
         (b)  The affidavit required by Subsection (a) must describe
  all reasonable efforts that were made to prevent or eliminate the
  need for the removal of the child.
         SECTION 2.  Subchapter B, Chapter 262, Family Code, is
  amended by adding Section 262.1016 to read as follows:
         Sec. 262.1016.  AGREED ORDER FOR REMOVAL OF ALLEGED
  PERPETRATOR. (a) An alleged perpetrator of abuse or neglect may
  agree in writing to an order under Section 262.1015 requiring the
  alleged perpetrator to leave the residence of the child. An
  agreement under this section is subject to the approval of the
  court.
         (b)  An agreed order under this section must contain the
  following statement in boldface type and capital letters: "YOUR
  AGREEMENT TO THIS ORDER IS NOT AN ADMISSION OF CHILD ABUSE OR
  NEGLECT ON YOUR PART AND CANNOT BE USED AGAINST YOU AS AN ADMISSION
  OF CHILD ABUSE OR NEGLECT."
         (c)  An agreed order under this section may not be used
  against an alleged perpetrator as an admission of child abuse or
  neglect.
         (d)  An agreed order under this section is enforceable
  civilly or criminally but is not enforceable as a contract.
         (e)  At any time, a person affected by an agreed order under
  this section may request the court to terminate the order. The court
  shall terminate the agreed order on finding the order is no longer
  needed and terminating the order is in the best interest of the
  child.
         SECTION 3.  Section 262.102(a), Family Code, is amended to
  read as follows:
         (a)  Before a court may, without prior notice and a hearing,
  issue a temporary order for the conservatorship of a child under
  Section 105.001(a)(1) or a temporary restraining order or
  attachment of a child authorizing a governmental entity to take
  possession of a child in a suit brought by a governmental entity,
  the court must find that:
               (1)  there is an immediate danger to the physical
  health or safety of the child or the child has been a victim of
  neglect or sexual abuse;
               (2)  continuation in the home would be contrary to the
  child's welfare;
               (3)  there is no time, consistent with the physical
  health or safety of the child and the nature of the emergency, for a
  full adversary hearing under Subchapter C; [and]
               (4)  the child would not be adequately protected in the
  child's home with an order for the removal of the alleged
  perpetrator under Section 262.1015 or 262.1016 or a protective
  order issued under Title 4;
               (5)  placing the child with a relative or designated
  caregiver or with a caregiver under a parental child safety
  placement agreement authorized by Subchapter L, Chapter 264:
                     (A)   was offered but refused;
                     (B)   was not possible because there was no time,
  consistent with the physical health or safety of the child and the
  nature of the emergency, to conduct the caregiver evaluation; or
                     (C)  would pose an immediate danger to the
  physical health or safety of the child; and
               (6)  reasonable efforts, consistent with the
  circumstances and providing for the safety of the child, were made
  to prevent or eliminate the need for removal of the child.
         SECTION 4.  Section 262.105, Family Code, is amended by
  amending Subsection (b) and adding Subsection (c) to read as
  follows:
         (b)  An original suit filed by a governmental entity after
  taking possession of a child under Section 262.104 must be
  supported by an affidavit stating facts sufficient to satisfy a
  person of ordinary prudence and caution that:
               (1)  based on the affiant's personal knowledge or on
  information furnished by another person corroborated by the
  affiant's personal knowledge, one of the following circumstances
  existed at the time the child was taken into possession:
                     (A)  there was an immediate danger to the physical
  health or safety of the child;
                     (B)  the child was the victim of sexual abuse or of
  trafficking under Section 20A.02 or 20A.03, Penal Code;
                     (C)  the parent or person who had possession of
  the child was using a controlled substance as defined by Chapter
  481, Health and Safety Code, and the use constituted an immediate
  danger to the physical health or safety of the child; or
                     (D)  the parent or person who had possession of
  the child permitted the child to remain on premises used for the
  manufacture of methamphetamine; and
               (2)  based on the affiant's personal knowledge:
                     (A)  continuation of the child in the home would
  have been contrary to the child's welfare;
                     (B)  there was no time, consistent with the
  physical health or safety of the child, for a full adversary hearing
  under Subchapter C; [and]
                     (C)  the child would not be adequately protected
  in the child's home with an order for the removal of the alleged
  perpetrator under Section 262.1015 or 262.1016 or a protective
  order issued under Title 4;
                     (D)  placing the child with a relative or
  designated caregiver or with a caregiver under a parental child
  safety placement agreement authorized by Subchapter L, Chapter 264:
                           (i)  was offered but refused;
                           (ii)  was not possible because there was no
  time, consistent with the physical health or safety of the child and
  the nature of the emergency, to conduct the caregiver evaluation;
  or
                           (iii)  would pose an immediate danger to the
  physical health or safety of the child; and
                     (E)  reasonable efforts, consistent with the
  circumstances and providing for the safety of the child, were made
  to prevent or eliminate the need for the removal of the child.
         (c)  The affidavit required by Subsection (b) must describe
  all reasonable efforts that were made to prevent or eliminate the
  need for the removal of the child.
         SECTION 5.  Section 262.107(a), Family Code, is amended to
  read as follows:
         (a)  The court shall order the return of the child at the
  initial hearing regarding a child taken in possession without a
  court order by a governmental entity unless the court is satisfied
  that:
               (1)  the evidence shows that one of the following
  circumstances exists:
                     (A)  there is a continuing danger to the physical
  health or safety of the child if the child is returned to the
  parent, managing conservator, possessory conservator, guardian,
  caretaker, or custodian who is presently entitled to possession of
  the child;
                     (B)  the child has been the victim of sexual abuse
  or of trafficking under Section 20A.02 or 20A.03, Penal Code, on one
  or more occasions and that there is a substantial risk that the
  child will be the victim of sexual abuse or of trafficking in the
  future;
                     (C)  the parent or person who has possession of
  the child is currently using a controlled substance as defined by
  Chapter 481, Health and Safety Code, and the use constitutes an
  immediate danger to the physical health or safety of the child; or
                     (D)  the parent or person who has possession of
  the child has permitted the child to remain on premises used for the
  manufacture of methamphetamine;
               (2)  continuation of the child in the home would be
  contrary to the child's welfare; [and]
               (3)  the child would not be adequately protected in the
  child's home with an order for the removal of the alleged
  perpetrator under Section 262.1015 or 262.1016 or a protective
  order issued under Title 4;
               (4)  placing the child with a relative or designated
  caregiver or with a caregiver under a parental child safety
  placement agreement authorized by Subchapter L, Chapter 264:
                     (A)  was offered but refused;
                     (B)  was not possible because there was no time,
  consistent with the physical health or safety of the child and the
  nature of the emergency, to conduct the caregiver evaluation; or
                     (C)  would pose an immediate danger to the
  physical health or safety of the child; and
               (5)  reasonable efforts, consistent with the
  circumstances and providing for the safety of the child, were made
  to prevent or eliminate the need for removal of the child.
         SECTION 6.  Section 262.113, Family Code, is amended to read
  as follows:
         Sec. 262.113.  FILING SUIT WITHOUT TAKING POSSESSION OF
  CHILD. (a) An original suit filed by a governmental entity that
  requests to take possession of a child after notice and a hearing
  must be supported by an affidavit sworn to by a person with personal
  knowledge and stating facts sufficient to satisfy a person of
  ordinary prudence and caution that:
               (1)  there is a continuing danger to the physical
  health or safety of the child caused by an act or failure to act of
  the person entitled to possession of the child and that allowing the
  child to remain in the home would be contrary to the child's
  welfare; and
               (2)  reasonable efforts, consistent with the
  circumstances and providing for the safety of the child, have been
  made to prevent or eliminate the need to remove the child from the
  child's home.
         (b)  The affidavit required by Subsection (a) must describe
  all reasonable efforts that were made to prevent or eliminate the
  need for the removal of the child.
         SECTION 7.  The changes in law made by this Act apply to a
  suit affecting the parent-child relationship that is filed on or
  after the effective date of this Act. A suit filed before the
  effective date of this Act is governed by the law in effect on the
  date that the suit is filed, and the former law is continued in
  effect for that purpose.
         SECTION 8.  This Act takes effect September 1, 2021.