| |
|
|
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. |
|
|
|
|
|
* * * * * |