1-1 By: Luna S.B. No. 1390
1-2 (In the Senate - Filed April 19, 1993; April 20, 1993, read
1-3 first time and referred to Committee on Jurisprudence; May 4, 1993,
1-4 reported favorably, as amended, by the following vote: Yeas 6,
1-5 Nays 0; May 4, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Henderson x
1-9 Harris of Tarrant x
1-10 Brown x
1-11 Harris of Dallas x
1-12 Luna x
1-13 Parker x
1-14 West x
1-15 COMMITTEE AMENDMENT NO. 1 By: Luna
1-16 In S.B. No. 1390, strike Section 18.10(b), Family Code, and
1-17 re-letter the subsequent subsections accordingly.
1-18 A BILL TO BE ENTITLED
1-19 AN ACT
1-20 relating to the review of placement of a child under the care of
1-21 the Department of Protective and Regulatory Services.
1-22 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-23 SECTION 1. Chapter 18, Family Code, is amended to read as
1-24 follows:
1-25 CHAPTER 18. REVIEW OF PLACEMENT OF CHILDREN UNDER
1-26 THE CARE OF THE DEPARTMENT OF PROTECTIVE AND REGULATORY
1-27 <HUMAN> SERVICES
1-28 Sec. 18.01. GENERAL PROVISIONS; DEFINITIONS. (a) In this
1-29 chapter:
1-30 (1) "Department" means the Department of Protective
1-31 and Regulatory Services.
1-32 (2) "Child's home" means the place of residence of the
1-33 child's parents.
1-34 (b) In the preparation and review of a service plan under
1-35 Sections 18.02 through 18.10 of this code and in Subsection (a)(2)
1-36 of this section, a reference to the parents of the child includes
1-37 both parents of the child unless the child has only one parent or
1-38 unless, after due diligence by the department in attempting to
1-39 locate a parent, only one parent is located, in which case the
1-40 reference is to the remaining parent.
1-41 Sec. 18.02. REVIEW OF PLACEMENTS BY COURT OF CONTINUING
1-42 JURISDICTION. <(a)> In a suit affecting the parent-child
1-43 relationship in which the department <Texas Department of Human
1-44 Services> or any authorized agency has been named by the court or
1-45 in an affidavit of relinquishment of parental rights as the
1-46 managing conservator of a child, the court shall hold a hearing to
1-47 review the conservatorship appointment and the department's or
1-48 authorized agency's placement of the child <by the department or
1-49 authorized agency> in foster home care, group home care, or
1-50 institutional care.
1-51 Sec. 18.03. SERVICE PLAN; CONTENTS. (a) Not later than the
1-52 45th day after the date of the conclusion of a hearing under
1-53 Section 17.04 of this code, the department or other agency named
1-54 the managing conservator of a child shall file a service plan.
1-55 (b) The service plan shall:
1-56 (1) be specific;
1-57 (2) be in writing;
1-58 (3) be prepared by the department or other agency in
1-59 conference with the child's parents;
1-60 (4) state any appropriate deadlines;
1-61 (5) state whether the goal of the plan is:
1-62 (A) return of the child to the child's parents;
1-63 (B) termination of parental rights and placement
1-64 of the child for adoption; or
1-65 (C) because of the child's special needs or
1-66 exceptional circumstances, continuation of the child's care out of
1-67 the child's home;
1-68 (6) state the steps that are necessary to:
2-1 (A) return the child to the child's home if the
2-2 placement is in foster care;
2-3 (B) enable the child to remain in the child's
2-4 home with the assistance of a service plan if the placement is in
2-5 the home under the department's or other agency's supervision; or
2-6 (C) otherwise provide a permanent safe placement
2-7 for the child;
2-8 (7) state the actions and responsibilities that are
2-9 necessary for the child's parents to take to achieve the plan goal
2-10 during the period of the service plan and the assistance to be
2-11 provided to the parents by the department or other agency toward
2-12 meeting that goal;
2-13 (8) give the name of the person with the department or
2-14 other agency whom the child's parents may contact for information
2-15 relating to the child if other than the person preparing the plan;
2-16 and
2-17 (9) prescribe any other term or condition that the
2-18 department or other agency determines to be necessary to the
2-19 service plan's success.
2-20 (c) The service plan shall include the following statement:
2-21 TO THE PARENT: THIS IS A VERY IMPORTANT DOCUMENT. ITS
2-22 PURPOSE IS TO HELP YOU PROVIDE YOUR CHILD WITH A SAFE
2-23 ENVIRONMENT WITHIN THE REASONABLE PERIOD SPECIFIED IN
2-24 THE PLAN. IF YOU ARE UNWILLING OR UNABLE TO PROVIDE
2-25 YOUR CHILD WITH A SAFE ENVIRONMENT, YOUR PARENTAL AND
2-26 CUSTODIAL DUTIES AND RIGHTS MAY BE RESTRICTED OR
2-27 TERMINATED OR YOUR CHILD MAY NOT BE RETURNED TO YOU.
2-28 THERE WILL BE A COURT HEARING AT WHICH A JUDGE WILL
2-29 REVIEW THIS SERVICE PLAN.
2-30 (d) If both parents are available but do not live in the
2-31 same household and do not agree to cooperate with one another in
2-32 the development of a service plan for the child, the department or
2-33 other agency in preparing the service plan may provide for the care
2-34 of the child in the home of either parent or the homes of both
2-35 parents as the best interest of the child requires.
2-36 Sec. 18.04. SERVICE PLAN: SIGNING AND TAKING EFFECT.
2-37 (a) Before the service plan is signed, the child's parents and the
2-38 representative of the department or other agency shall discuss each
2-39 term and condition of the plan.
2-40 (b) The child's parents and the person preparing the service
2-41 plan shall sign the plan, and the department or other agency shall
2-42 give each parent a copy of the service plan.
2-43 (c) The service plan takes effect when:
2-44 (1) the child's parents and the appropriate
2-45 representative of the department or other agency sign the plan; or
2-46 (2) the department or other agency determines that the
2-47 child's parents are unable or unwilling to sign the plan.
2-48 (d) The service plan is in effect until the court amends it.
2-49 Sec. 18.05. AMENDED SERVICE PLAN. (a) At any time after
2-50 the service plan is filed, the parties may agree to an amended
2-51 service plan.
2-52 (b) The amended service plan supersedes the previously filed
2-53 service plan and takes effect when:
2-54 (1) the child's parents and the appropriate
2-55 representative of the department or other agency sign the plan; or
2-56 (2) the department or other agency determines that the
2-57 child's parents are unable or unwilling to sign the plan.
2-58 (c) The amended service plan remains in effect until the
2-59 court amends it.
2-60 Sec. 18.06. REVIEW OF SERVICE PLAN. (a) The service plan
2-61 currently in effect shall be filed with the court along with the
2-62 next required status report.
2-63 (b) The court shall review the service plan at the next
2-64 required hearing under this chapter after the plan is filed.
2-65 Sec. 18.07. STATUS HEARING. (a) Not later than the 60th
2-66 day after the date of a hearing under Section 17.04 of this code,
2-67 the court shall hold a status hearing.
2-68 (b) If all parties entitled to notice under Section 18.12 of
2-69 this code were not served, the court shall make findings as to
2-70 whether:
3-1 (1) the department or other agency has exercised due
3-2 diligence to locate all necessary persons; and
3-3 (2) if only one parent is before the court, that
3-4 parent has furnished to the department all available information
3-5 necessary to locate any absent parent through the federal parental
3-6 locator service.
3-7 (c) The court shall review the service plan that the
3-8 department or other agency filed under Section 18.03 of this code
3-9 for reasonableness, accuracy, and compliance with requirements of
3-10 court orders and make findings as to whether:
3-11 (1) a plan that has the goal of returning the child to
3-12 the child's parents adequately ensures that reasonable efforts are
3-13 made to enable the child's parents to provide a safe environment
3-14 for the child; and
3-15 (2) the child's parents have reviewed and understand
3-16 the service plan and have been advised that unless the parents are
3-17 willing and able to provide the child with a safe environment, even
3-18 with the assistance of a service plan, within the reasonable period
3-19 of time specified in the plan, the parents' parental and custodial
3-20 duties and rights may be subject to restriction or to termination
3-21 under this code or the child may not be returned to the parents.
3-22 (d) The court shall advise the parties that progress under
3-23 the service plan will be reviewed at all subsequent hearings.
3-24 Sec. 18.08. INITIAL REVIEW HEARING. (a) Not later than the
3-25 180th day after the date of the conclusion of the hearing under
3-26 Section 17.04 of this code, the court shall hold a review hearing.
3-27 (b) Notice of a review hearing shall be given as provided by
3-28 Rule 21a, Texas Rules of Civil Procedure, to all persons entitled
3-29 to notice of the hearing.
3-30 (c) If a person entitled to notice under Section 11.09(a) or
3-31 18.12 of this code has not been served, the court shall review the
3-32 department's or other agency's efforts at attempting to locate all
3-33 necessary persons and requesting service of citation and the
3-34 assistance of any parent in providing information necessary to
3-35 locate an absent parent.
3-36 Sec. 18.09. REVIEW HEARINGS: PROCEDURE. (a) At each
3-37 review hearing the court shall:
3-38 (1) identify all persons or parties present at the
3-39 hearing or those given notice but failing to appear;
3-40 (2) consider all relevant information pertaining to
3-41 the factors under Section 18.15 of this code to determine whether
3-42 the child's parents are willing and able to provide the child with
3-43 a safe environment; and
3-44 (3) determine the extent to which the child's parents
3-45 have taken the necessary actions or responsibilities toward
3-46 achieving the plan goal during the period of the service plan and
3-47 the extent to which the department or other agency has provided
3-48 assistance to the parents as provided in the service plan.
3-49 (b) At each review hearing the court also shall:
3-50 (1) determine whether the child's parents are willing
3-51 and able to provide the child with a safe environment without the
3-52 assistance of a service plan and, if so, return the child to the
3-53 parents;
3-54 (2) determine whether the child's parents are willing
3-55 and able to provide the child with a safe environment with the
3-56 assistance of a service plan and, if so, return the child or
3-57 continue the placement of the child in the child's home under the
3-58 department's or other agency's supervision;
3-59 (3) determine whether the child's parents are
3-60 presently unwilling or unable to provide the child with a safe
3-61 environment, even with the assistance of a service plan, and, if
3-62 so, order the child to remain under the department's or other
3-63 agency's managing conservatorship for a period of time specified by
3-64 the court;
3-65 (4) determine whether a long-term foster care
3-66 placement is in the child's best interest because of the child's
3-67 special needs or circumstances and, if so, begin a long-term foster
3-68 care placement;
3-69 (5) determine whether a child is 16 years of age or
3-70 older and, if so, order the services that are needed to assist the
4-1 child in making the transition from foster care to independent
4-2 living if the services are available in the community;
4-3 (6) determine whether the child has been placed with
4-4 the department under a voluntary placement agreement and, if so,
4-5 order that the department will institute further proceedings or
4-6 return the child to the parents;
4-7 (7) determine whether the department or other agency
4-8 has custody, care, and control of the child under an affidavit of
4-9 relinquishment of parental rights naming the department or
4-10 authorized agency managing conservator and, if so, direct the
4-11 department or other agency to institute further proceedings; or
4-12 (8) determine whether parental rights to the child
4-13 have been terminated and, if so, determine whether the department
4-14 or other agency will attempt to place the child for adoption.
4-15 (c) In any case in which the court determines that a
4-16 disposition under Subsection (b)(3) of this section is appropriate,
4-17 the court shall make a finding that the child's parents understand
4-18 that unless the parents are willing and able to provide the child
4-19 with a safe environment, even with the assistance of a service
4-20 plan, the parents' parental and custodial duties and rights may be
4-21 subject to restriction or to termination under this code, and, in
4-22 the case of a child residing in foster care for at least 18 months,
4-23 the court shall determine the appropriateness of the target date by
4-24 which the child may return home. The court may also enter any
4-25 further orders that are appropriate.
4-26 Sec. 18.10. SUBSEQUENT REVIEW HEARINGS. (a) Subsequent
4-27 review hearings <(b) The hearing> shall be held not earlier than
4-28 five and one-half months and not later than seven <twelve> months
4-29 after the date of the last hearing in the suit unless, for good
4-30 cause shown by any party, an earlier hearing is approved by the
4-31 court.
4-32 (b) <(c)> Not earlier than five and one-half months and not
4-33 later than seven months after the date of the last hearing in the
4-34 suit the department shall:
4-35 (1) petition the court for a hearing; or
4-36 (2) conduct an administrative review of the child's
4-37 placement <of the child> and provide a written report regarding
4-38 <concerning> the results of the review to the court and all parties
4-39 to the suit.
4-40 (c) At least 10 days before the date set for each review
4-41 hearing, the department or other agency shall file with the court a
4-42 status report unless the court orders a different period or orders
4-43 that a report is not required for a specific hearing. The report
4-44 shall:
4-45 (1) evaluate all relevant information concerning each
4-46 of the guidelines under Section 18.15 of this code and the parties'
4-47 compliance with the service plan; and
4-48 (2) recommend one of the following actions:
4-49 (A) that the child be returned to the child's
4-50 home and that the suit be dismissed;
4-51 (B) that the child be returned to the child's
4-52 home with the department or other agency retaining conservatorship;
4-53 (C) that the child remain in foster care for a
4-54 specified period and that the child's parents continue to work
4-55 toward providing the child with a safe environment;
4-56 (D) that the child remain in foster care for a
4-57 specified period and that termination of parental rights be sought
4-58 under this code;
4-59 (E) that a child who has resided in foster care
4-60 for at least 18 months be placed or remain in permanent or
4-61 long-term foster care because of the child's special needs or
4-62 circumstances; or
4-63 (F) that other plans be made or other services
4-64 provided in accordance with the child's special needs or
4-65 circumstances.
4-66 (d) A parent whose parental rights are the subject of a suit
4-67 affecting the parent-child relationship, the attorney for that
4-68 parent, or the child's guardian ad litem may file a response to the
4-69 department's or other agency's report filed under Subsection (c) of
4-70 this section. A response must be filed not later than the third
5-1 day before the date of the hearing.
5-2 Sec. 18.11 <18.02>. VOLUNTARY PLACEMENTS: SUIT. (a) If a
5-3 parent, managing conservator, or guardian <of the person> of a
5-4 child who is not subject to the continuing jurisdiction of a court
5-5 under this title voluntarily agrees to surrender the custody, care,
5-6 or control of a child to the department <Texas Department of Human
5-7 Services>, the department, not later than 60 days after taking
5-8 possession of or exercising control of the child, shall file a suit
5-9 affecting the parent-child relationship under this title,
5-10 establishing a court of continuing jurisdiction for the child, and
5-11 requesting a review of the placement of the child in foster home
5-12 care, group home care, or institutional care.
5-13 (b) The petition shall state that the purpose of the suit is
5-14 to initiate periodic review of the necessity and propriety of the
5-15 child's placement in accordance with Sections 18.02 through 18.10
5-16 of this code <of the child>. A copy of the agreement between the
5-17 department and the parent, managing conservator, or guardian of the
5-18 child shall be filed with the petition.
5-19 <(c) In addition to those persons listed in Section 11.09(a)
5-20 of this code as entitled to service of citation in a suit affecting
5-21 the parent-child relationship, a person listed in Section 18.03 of
5-22 this code is entitled to service of citation.>
5-23 <(d) The hearing shall be held not earlier than five and
5-24 one-half months and not later than twelve months after the date
5-25 that the department took possession of or exercised control over
5-26 the child unless, for good cause shown by any party, an earlier
5-27 hearing is approved by the court.>
5-28 <(e) Not earlier than five and one-half months and not later
5-29 than seven months after the date the department took possession of
5-30 or exercised control over the child the department shall:>
5-31 <(1) petition the court for a hearing; or>
5-32 <(2) conduct an administrative review of the placement
5-33 of the child and provide a written report concerning the results of
5-34 the review to the court and all parties to the suit.>
5-35 Sec. 18.12 <18.03>. PERSONS ENTITLED TO NOTICE. The
5-36 following persons are entitled to at least 10 days' notice of a
5-37 hearing to review a child's <child> placement and are entitled to
5-38 present evidence and be heard at the hearing:
5-39 (1) the department <Texas Department of Human
5-40 Services>;
5-41 (2) the foster parent or director of the group home or
5-42 institution where the child is residing;
5-43 (3) each parent of the child;
5-44 (4) the managing conservator or guardian of the
5-45 <person of the> child; and
5-46 (5) any other person or agency named by the court to
5-47 have an interest in the child's welfare <of the child>.
5-48 Sec. 18.13 <18.04>. WHEN CHILD IS AT HOME. (a) If the
5-49 department <Texas Department of Human Services> or authorized
5-50 agency returns a child to a parent for custody, care, or control,
5-51 the department or authorized agency shall notify the court having
5-52 continuing jurisdiction of the suit of the department's action
5-53 and, so long as the child remains under the custody, care, or
5-54 control of the parent, no review of that placement is required
5-55 under this chapter.
5-56 (b) If a child has been returned to a parent and if the
5-57 department or authorized agency resumes the custody, care, or
5-58 control of the child or designates any person other than a parent
5-59 to have the custody, care, or control of the child, the department
5-60 or authorized agency shall notify the court of its action.
5-61 (c) If the department or authorized agency resumes the
5-62 custody, care, or control of the child or designates a person other
5-63 than a parent to have the custody, care, or control of the child
5-64 within three months after returning the child to a parent, the
5-65 period that that child was under the custody, care, or control of
5-66 his or her parent shall not be considered in determining the date
5-67 for the next placement review hearing.
5-68 Sec. 18.14 <18.05>. Child's Attendance at Hearing. The
5-69 court <in its discretion> may dispense with the attendance of the
5-70 child at a placement review hearing.
6-1 Sec. 18.15 <18.06>. FACTORS IN DETERMINING BEST INTEREST
6-2 <DISPOSITION> OF CHILD. (a) In considering the factors
6-3 established by this section, the prompt and permanent placement of
6-4 the child in a safe environment is presumed to be in the child's
6-5 best interest.
6-6 (b) The following factors should be considered by the court,
6-7 the department, and other authorized agencies in determining
6-8 whether the child's parents are willing and able to provide the
6-9 child with a safe environment:
6-10 (1) the child's age and physical and mental
6-11 vulnerabilities;
6-12 (2) the frequency and nature of out-of-home
6-13 placements;
6-14 (3) the magnitude, frequency, and circumstances of the
6-15 harm to the child;
6-16 (4) whether the child has been the victim of repeated
6-17 harm after the initial report and intervention by the department or
6-18 other agency;
6-19 (5) whether the child is fearful of living in or
6-20 returning to the child's home;
6-21 (6) the results of psychiatric, psychological, or
6-22 developmental evaluations of the child, the child's parents, other
6-23 family members, or others who have access to the child's home;
6-24 (7) whether there is a history of abusive or
6-25 assaultive conduct by the child's family or others who have access
6-26 to the child's home;
6-27 (8) whether there is a history of substance abuse by
6-28 the child's family or others who have access to the child's home;
6-29 (9) whether the perpetrator of the harm to the child
6-30 is identified;
6-31 (10) the willingness and ability of the child's family
6-32 to seek out, accept, and complete counseling services and to
6-33 cooperate with and facilitate an appropriate agency's close
6-34 supervision;
6-35 (11) the willingness and ability of the child's family
6-36 to effect positive environmental and personal changes within a
6-37 reasonable period of time;
6-38 (12) whether the child's family demonstrates adequate
6-39 parenting skills, including providing the child and other children
6-40 under the family's care with:
6-41 (A) minimally adequate health and nutritional
6-42 care;
6-43 (B) care, nurturance, and appropriate discipline
6-44 consistent with the child's physical and psychological development;
6-45 (C) guidance and supervision consistent with the
6-46 child's safety;
6-47 (D) a safe physical home environment;
6-48 (E) protection from repeated exposure to
6-49 violence even though the violence may not be directed at the child;
6-50 and
6-51 (F) an understanding of the child's needs and
6-52 capabilities; and
6-53 (13) whether an adequate social support system
6-54 consisting of an extended family and friends is available to the
6-55 child.
6-56 (c) In the case of a child 16 years of age or older, the
6-57 following guidelines should be considered by the court in
6-58 determining whether to adopt the permanency plan submitted by the
6-59 department:
6-60 (1) whether the permanency plan submitted to the court
6-61 includes the services planned for the child to make the transition
6-62 from foster care to independent living; and
6-63 (2) whether this transition is in the best interest of
6-64 the child.
6-65 Sec. 18.16. REVIEW AFTER TERMINATION OR RELINQUISHMENT OF
6-66 PARENTAL RIGHTS. If <At the conclusion of a placement review
6-67 hearing under this chapter, the court, in accordance with the best
6-68 interest of the child, may order:>
6-69 <(1) that the foster care, group home care, or
6-70 institutional care be continued;>
7-1 <(2) that the child be returned to his or her parent
7-2 or guardian;>
7-3 <(3) if the child has been placed with the Texas
7-4 Department of Human Services under a voluntary agreement, that the
7-5 department institute further proceedings to appoint the department
7-6 as managing conservator or to terminate parental rights in order to
7-7 provide permanent placement for the child or to make the child
7-8 available for adoption;>
7-9 <(4) if> the parental rights to a <of the> child have
7-10 <already> been terminated and the child is eligible for adoption or
7-11 the department or authorized agency has custody, care, and control
7-12 of a <the> child under an affidavit of relinquishment of parental
7-13 rights naming the department or authorized agency as managing
7-14 conservator, the court shall review the department's or authorized
7-15 agency's efforts <that the department or authorized agency attempt>
7-16 to place the child for adoption at least once every six months<; or>
7-17 <(5) the Texas Department of Human Services or
7-18 authorized agency to provide services to ensure that every effort
7-19 has been made to enable the parents to provide a family for their
7-20 own children>.
7-21 SECTION 2. The importance of this legislation and the
7-22 crowded condition of the calendars in both houses create an
7-23 emergency and an imperative public necessity that the
7-24 constitutional rule requiring bills to be read on three several
7-25 days in each house be suspended, and this rule is hereby suspended,
7-26 and that this Act take effect and be in force from and after its
7-27 passage, and it is so enacted.
7-28 * * * * *
7-29 Austin,
7-30 Texas
7-31 May 4, 1993
7-32 Hon. Bob Bullock
7-33 President of the Senate
7-34 Sir:
7-35 We, your Committee on Jurisprudence to which was referred S.B. No.
7-36 1390, have had the same under consideration, and I am instructed to
7-37 report it back to the Senate with the recommendation that it do
7-38 pass, as amended, and be printed.
7-39 Henderson,
7-40 Chairman
7-41 * * * * *
7-42 WITNESSES
7-43 FOR AGAINST ON
7-44 ___________________________________________________________________
7-45 Name: Winifred Conlon x
7-46 Representing: Texas State Foster Parents, Inc.
7-47 City: Austin
7-48 -------------------------------------------------------------------
7-49 Name: Fairy D. Rutland x
7-50 Representing:
7-51 City: Austin
7-52 -------------------------------------------------------------------
7-53 Name: Janice Gammill x
7-54 Representing: Texas DPRS
7-55 City: Austin
7-56 -------------------------------------------------------------------
7-57 Name: Ray Worsham x
7-58 Representing: TDPRS
7-59 City: Austin
7-60 -------------------------------------------------------------------