By: Leedom S.B. No. 262
A BILL TO BE ENTITLED
AN ACT
1-1 relating to reports of, and suits for the protection of, abused
1-2 children; providing a criminal penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 17.03, Family Code, is amended by adding
1-5 Subsection (j) to read as follows:
1-6 (j) When a child is taken into possession under this
1-7 section, the person taking the child into possession must make
1-8 every reasonable effort to place the child in the child's home if a
1-9 person entitled to possession of the child can care for the child
1-10 in the home. If a person entitled to possession is not available
1-11 to care for the child in the child's home, the person taking the
1-12 child into possession must make every reasonable effort to place
1-13 the child with another parent or relative who is able to provide
1-14 the child with a safe environment on a temporary basis.
1-15 SECTION 2. Section 17.04, Family Code, is amended to read as
1-16 follows:
1-17 Sec. 17.04. FULL ADVERSARY HEARING; FINDINGS OF THE COURT.
1-18 (a) Unless the child has already been returned to the parent,
1-19 managing conservator, possessory conservator, guardian, caretaker,
1-20 or custodian entitled to possession and the <any> temporary order,
1-21 if any, has been <orders> dissolved, a full adversary hearing shall
1-22 be held not later than the 14th day after the date the child was
1-23 taken into possession by the governmental entity <of:>
1-24 <(1) the taking of the child into possession by
2-1 authority of Subdivision (3) or (4) of Subsection (a) of Section
2-2 17.03 of this code;>
2-3 <(2) the taking of the child into possession by
2-4 authority of a temporary restraining order or attachment of a child
2-5 issued under Section 17.02 of this code; or>
2-6 <(3) the filing of the suit provided under Subsection
2-7 (g) of Section 17.03 of this code>.
2-8 (b) At the conclusion of the full adversary hearing, the
2-9 court shall order the return of the child to the parent, managing
2-10 conservator, possessory conservator, guardian, caretaker, or
2-11 custodian entitled to possession unless the court finds sufficient
2-12 evidence to satisfy a person of ordinary prudence and caution that:
2-13 (1) there was <is> a danger to the physical health or
2-14 safety of the child which was caused by an <any> act or a failure
2-15 to act of the person entitled to possession and it was contrary to
2-16 the welfare of the child to remain in the home;
2-17 (2) the urgent need for protection required the
2-18 immediate removal of the child, making reasonable efforts to
2-19 eliminate or prevent the child's removal impossible or
2-20 unreasonable; and
2-21 (3) in spite of reasonable efforts to eliminate the
2-22 need for the child's removal and enable the child to return home,
2-23 there is a substantial risk of a continuing danger which makes the
2-24 return of the child to the child's home contrary to the child's
2-25 welfare.
2-26 (c) If the court finds sufficient evidence to satisfy a
2-27 person of ordinary prudence and caution that there is a continuing
3-1 danger to the physical health or safety of the child and that it is
3-2 contrary to the welfare of the child to remain in the home, the
3-3 court shall issue an appropriate temporary order <orders> under
3-4 Chapter 11 <Section 11.11> of this code.
3-5 (d) In determining whether there is a continuing danger to
3-6 the physical health or safety of the child, the court may consider
3-7 whether the household to which the child would be returned has in
3-8 it a person who:
3-9 (1) <to whom the child would be returned> has abused
3-10 or neglected another child in a manner that caused serious injury
3-11 to or the death of the other child; or
3-12 (2) has sexually abused another child.
3-13 SECTION 3. Subchapter A, Chapter 34, Family Code, is amended
3-14 by adding Section 34.0311 to read as follows:
3-15 Sec. 34.0311. CAUSING CHILD TO MAKE FALSE REPORT OF ABUSE OR
3-16 NEGLECT. (a) A person commits an offense if the person knowingly
3-17 or intentionally causes a child to make a false statement that
3-18 becomes the basis of an allegation in a report of sexual, physical,
3-19 or emotional abuse or neglect of the child.
3-20 (b) An offense under this section is a Class A misdemeanor.
3-21 SECTION 4. Section 34.05, Family Code, is amended to read as
3-22 follows:
3-23 Sec. 34.05. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
3-24 (a) Unless the report alleges that the abuse or neglect occurred
3-25 in a facility operated, licensed, certified, or registered by
3-26 another state agency, the <Texas> Department of Protective and
3-27 Regulatory <Human> Services or the agency designated by the court
4-1 to be responsible for the protection of children shall make a
4-2 thorough investigation promptly after receiving either the oral or
4-3 written report of child abuse or neglect by a person responsible
4-4 for a child's care, custody, or welfare. If the report is
4-5 anonymous, the department shall make the investigation after
4-6 determining that there is some credible evidence to corroborate the
4-7 report as prescribed by Section 34.053 of this code. If the report
4-8 alleges that the abuse or neglect occurred in a facility operated,
4-9 licensed, certified, or registered by another state agency, that
4-10 agency shall investigate the report as prescribed by Subchapter B
4-11 of this chapter. If the report alleges child abuse or neglect in a
4-12 location other than a facility operated, licensed, certified, or
4-13 registered by a state agency and by a person other than a person
4-14 responsible for a child's care, custody, or welfare, the department
4-15 is not required to investigate the report. The appropriate state
4-16 or local law enforcement agency shall investigate that report if
4-17 that agency determines an investigation should be conducted. The
4-18 department may by rule assign priorities to investigations based on
4-19 the severity and immediacy of the alleged harm to the child. <If
4-20 the department establishes a priority system, the department shall
4-21 adopt the system by rule.> The primary purpose of the
4-22 investigation shall be the protection of the child by determining
4-23 whether in-home crisis intervention and education, other child and
4-24 family services, or removal is necessary to protect the child from
4-25 abuse or neglect.
4-26 (b) If the department determines that in-home crisis
4-27 intervention is necessary and justified, the department shall make
5-1 every reasonable effort to maintain the child in the child's home.
5-2 (c) In protecting the child from abuse or neglect, the
5-3 department shall make every reasonable effort to preserve the
5-4 continuity of the child's living arrangements and normal family
5-5 relationships consistent with providing the child a safe
5-6 environment.
5-7 (d) As necessary to complete a thorough investigation, the
5-8 department or agency shall gather information concerning
5-9 <determine>:
5-10 (1) the nature, extent, and cause of the abuse or
5-11 neglect alleged to have occurred;
5-12 (2) the identity of the person alleged to be
5-13 responsible for the abuse or neglect;
5-14 (3) the names and conditions of the other children in
5-15 the home;
5-16 (4) an evaluation of the parents or persons
5-17 responsible for the care of the child;
5-18 (5) the adequacy of the home environment;
5-19 (6) the relationship of the child to the parents or
5-20 persons responsible for the care of the child; and
5-21 (7) all other pertinent data.
5-22 (e) <(c)> The investigation shall include a visit to the
5-23 child's home, unless the alleged risk of or actual abuse or neglect
5-24 can be confirmed or clearly ruled out without a home visit, and an
5-25 interview with and examination of the subject child.
5-26 (f) The interview with and examination of the child may be
5-27 conducted at any reasonable time and at any reasonable place,
6-1 including the child's school. The investigation may include an
6-2 interview with the child's parents and an interview with and
6-3 examination of any child in the home. The investigation may
6-4 include a medical, psychological, or psychiatric examination of any
6-5 child in that home. If admission to the home, school, or any place
6-6 where the child may be cannot be obtained, then the juvenile court,
6-7 district court, or other court having family law jurisdiction, upon
6-8 cause shown, shall order the parents or the persons responsible for
6-9 the care of the children, or the person in charge of any place
6-10 where the child may be, to allow entrance for the interview, the
6-11 examination, and the investigation. If the parents or person
6-12 responsible for the child's care does not consent to a medical,
6-13 psychological, or psychiatric examination of the child that is
6-14 requested by the department or agency, the juvenile court, district
6-15 court, or other court having family law jurisdiction, upon cause
6-16 shown, shall order the examination to be made at the times and
6-17 places designated by the court. The investigation may include an
6-18 inquiry into the possibility that the child, a parent, or a person
6-19 responsible for the care of the child has a history of mental
6-20 illness. If the parents or person responsible for the care of the
6-21 child does not allow the department or agency to have access to
6-22 mental health records requested by the department or agency, the
6-23 juvenile court, district court, or other court having family law
6-24 jurisdiction, on good cause shown, shall by order allow the
6-25 department or agency to have access to the records under terms and
6-26 conditions prescribed by the court. If the court determines that
6-27 the parent or person responsible for the care of the child is
7-1 indigent, the court shall appoint an attorney to represent the
7-2 parent or person responsible for the child at the hearing to obtain
7-3 mental health records. The fees for said attorney shall be paid by
7-4 the department or agency. A parent or person responsible for the
7-5 child's care is entitled to notice and a hearing when the
7-6 department or agency seeks a court order to allow a medical,
7-7 psychological, or psychiatric examination or access to mental
7-8 health records. This access does not constitute a waiver of
7-9 confidentiality.
7-10 (g) <(d)> If, before the investigation is complete, the
7-11 opinion of the investigators is that immediate removal is necessary
7-12 to protect the child from <further> abuse or neglect in accordance
7-13 with the emergency guidelines in Chapter 17 of this code, the
7-14 investigators shall file a petition pursuant to that chapter
7-15 <Chapter 17 of this code> for temporary care and protection of the
7-16 child.
7-17 (h) <(e)> The agency designated by the court to be
7-18 responsible for the protection of children or the department shall
7-19 make a complete written report of the investigation. The report,
7-20 together with its recommendations, shall be submitted to the
7-21 juvenile court or the district court, the district attorney, and
7-22 the appropriate law enforcement agency if sufficient grounds for
7-23 the institution of a suit affecting the parent-child relationship
7-24 are found. If the investigation relates to an allegation of abuse
7-25 or neglect in a facility operated, licensed, certified, or
7-26 registered by a state agency, the agency shall report as prescribed
7-27 by Subchapter B of this chapter. If the investigation relates to
8-1 an allegation of abuse or neglect in a facility that is not
8-2 operated, licensed, certified, or registered by a state agency, the
8-3 department shall submit the report of the investigation to the
8-4 policymaking body of the facility for any necessary corrective
8-5 action.
8-6 (i) <(f)> On the receipt of the report and recommendation
8-7 required by Subsection (h) <(e)> of this section, the court may
8-8 direct the investigator to file a petition seeking appropriate
8-9 relief under Subtitle A of this title.
8-10 (j) <(g)> If the department or agency has reason to believe
8-11 that a parent of the child may remove the child from the state
8-12 before the investigation is completed, the department or agency may
8-13 file an application for a temporary restraining order in any
8-14 district court without regard to continuing jurisdiction of the
8-15 child under Section 11.05 of this code. After a hearing on the
8-16 application, the court may enter a temporary restraining order
8-17 prohibiting the parent from removing the child from the state
8-18 pending completion of the investigation if the court finds that the
8-19 department or agency has probable cause to conduct the
8-20 investigation and has reason to believe that the parent may remove
8-21 the child from the state.
8-22 (k) Except as provided in Chapter 17 of this code or by
8-23 filing with the court a petition seeking appropriate relief, the
8-24 department or agency may not force a parent to limit the parent's
8-25 right of possession of or access to a child.
8-26 SECTION 5. Section 34.051, Family Code, is amended to read
8-27 as follows:
9-1 Sec. 34.051. Information Relating to Investigation
9-2 Procedure. (a) As soon as possible after initiating an
9-3 investigation under this subchapter of a parent or other person
9-4 having legal custody of a child, the <Texas> Department of
9-5 Protective and Regulatory <Human> Services shall provide to the
9-6 person a brief and easily understood summary of:
9-7 (1) the department's procedures for conducting an
9-8 investigation of alleged child abuse or neglect, including:
9-9 (A) a description of the circumstances under
9-10 which the department would seek to remove the child from the home
9-11 through the judicial system; and
9-12 (B) an explanation that the law requires the
9-13 department to refer all reports of alleged child abuse or neglect
9-14 to a law enforcement agency for a possible investigation <separate
9-15 determination> of whether a criminal violation occurred;
9-16 (2) the person's right to file a complaint with the
9-17 department or to request a review of the findings made by the
9-18 department in the investigation;
9-19 (3) the person's right to review all records of the
9-20 investigation unless the review would jeopardize an ongoing
9-21 criminal investigation;
9-22 (4) the person's right to seek legal counsel;
9-23 (5) references to the statutory and regulatory
9-24 provisions governing child abuse and neglect and how the person may
9-25 obtain copies of those provisions; and
9-26 (6) the process the person may use to acquire access
9-27 to the child if the child is removed from the home.
10-1 (b) The department shall provide the current address and
10-2 telephone number of the department to each person receiving the
10-3 information required under Subsection (a).
10-4 SECTION 6. Subsection (a), Section 34.053, Family Code, is
10-5 amended to read as follows:
10-6 (a) If the department receives an anonymous report of child
10-7 abuse or neglect by a person responsible for a child's care,
10-8 custody, or welfare, the department shall conduct a preliminary
10-9 investigation to determine if there is some credible <any> evidence
10-10 to corroborate the report.
10-11 SECTION 7. Section 34.054, Family Code, is amended to read
10-12 as follows:
10-13 Sec. 34.054. Investigation Standards. (a) The <Texas>
10-14 Department of Protective and Regulatory <Human> Services by rule
10-15 shall develop and adopt uniform <voluntary> standards for persons
10-16 in the department who investigate suspected child abuse at the
10-17 state or local level. The standards adopted by the department
10-18 shall be considered by another agency that investigates suspected
10-19 child abuse when the agency adopts standards and policies for
10-20 investigations by that agency <agency by rule must adopt the
10-21 standards for the standards to be effective>. The standards shall
10-22 encourage professionalism and consistency and require objectivity
10-23 in the investigation of suspected child abuse.
10-24 (b) The standards must require <provide for> a minimum
10-25 number of hours of annual professional training for interviewers
10-26 and investigators of suspected child abuse.
10-27 (c) The department shall review annually the professional
11-1 training curriculum for investigators and supervisors of
11-2 investigators to ensure that the curriculum is up-to-date and
11-3 consistent with current research by nationally recognized
11-4 behavioral scientists, including clinical child psychologists,
11-5 child psychiatrists, and childhood behaviorists with expertise in
11-6 prevention of abuse and neglect and treatment of children at risk
11-7 of abuse and neglect, on:
11-8 (1) child abuse;
11-9 (2) indicators of a false allegation of child abuse;
11-10 and
11-11 (3) methods of preventing and treating child abuse.
11-12 (d) The professional training curriculum developed under
11-13 this section must include information concerning:
11-14 (1) recognizing physical abuse, including
11-15 distinguishing abuse from ordinary childhood injuries;
11-16 (2) recognizing signs of psychological abuse;
11-17 (3) available treatment resources; <and>
11-18 (4) the incidence and types of reports of child abuse
11-19 that are received by the investigating agencies, including
11-20 information concerning false reports and the need to inform persons
11-21 suspected of making a false report of the provisions of Section
11-22 34.031 and Section 12.22, Penal Code; and
11-23 (5) procedures for conducting an investigation of
11-24 child abuse or neglect that include the gathering of all relevant
11-25 evidence and reaching a conclusion based on an objective
11-26 examination of all relevant evidence.
11-27 (e) <(d)> The standards must:
12-1 (1) recommend that videotaped and audiotaped
12-2 interviews with a suspected victim be uninterrupted;
12-3 (2) recommend a maximum number of interviews with and
12-4 examinations of a suspected victim;
12-5 (3) establish <recommend> procedures to preserve
12-6 evidence, including the case <original> notes, videotapes, and
12-7 audiotapes; <and>
12-8 (4) require <recommend> that an investigator of
12-9 suspected child abuse make a reasonable effort to locate and inform
12-10 each parent of a child of any report of abuse relating to the
12-11 child; and
12-12 (5) establish procedures that prohibit an investigator
12-13 from using interview techniques that cause the child to make a
12-14 false statement that alleges abuse or neglect.
12-15 SECTION 8. Subchapter A, Chapter 34, Family Code, is amended
12-16 by adding Section 34.056 to read as follows:
12-17 Sec. 34.056. EDUCATIONAL REQUIREMENTS. To become an
12-18 investigator or supervisor of an investigator under this chapter,
12-19 an employee must, at a minimum, have a bachelor's degree.
12-20 SECTION 9. Subsection (c), Section 34.23, Family Code, is
12-21 amended to read as follows:
12-22 (c) If the state agency finds evidence indicating that a
12-23 child may have <has> been <or may be> abused or neglected, the
12-24 agency shall <submit a copy of the> report <to> the evidence to the
12-25 appropriate law enforcement agency.
12-26 SECTION 10. Subsections (a) and (b), Section 34.51, Family
12-27 Code, are amended to read as follows:
13-1 (a) When the department provides services directly or by
13-2 contract to a <an abused> child and the child's family, the
13-3 services shall be designed to prevent <further> abuse, to
13-4 ameliorate <alleviate> the effects of <the> abuse that may have
13-5 occurred <suffered>, to prevent removal of the child from the home,
13-6 and to provide reunification services when appropriate for the
13-7 return of the child to the home. The department shall emphasize
13-8 ameliorative services for <sexually abused> children at risk of
13-9 sexual abuse.
13-10 (b) The department shall provide or contract for necessary
13-11 services to a <an abused> child and the child's family whether the
13-12 child remains in or is removed from the family home. If parental
13-13 rights have been terminated, services may be provided only to the
13-14 child.
13-15 SECTION 11. Subsection (a), Section 34.53, Family Code, is
13-16 amended to read as follows:
13-17 (a) Except as provided by Subsection (b) of this section,
13-18 the court on request of the department may order the parent,
13-19 managing conservator, guardian, or other member of the <abused>
13-20 child's household to participate in the services the department
13-21 provides or purchases for alleviating the effects of abuse that may
13-22 have occurred and to permit the <abused> child and any siblings to
13-23 receive the services. The department may request the court to
13-24 order the parent, managing conservator, guardian, or other member
13-25 of the <abused> child's household to participate in the services
13-26 whether the child resides in the home or has been removed from the
13-27 home. If the person ordered to participate in the services fails
14-1 to follow the court's order, the court may impose community service
14-2 as a sanction for contempt.
14-3 SECTION 12. This Act takes effect September 1, 1995.
14-4 SECTION 13. The importance of this legislation and the
14-5 crowded condition of the calendars in both houses create an
14-6 emergency and an imperative public necessity that the
14-7 constitutional rule requiring bills to be read on three several
14-8 days in each house be suspended, and this rule is hereby suspended.