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