By Leedom S.B. No. 262
74R2535 JMM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to reports of, and suits for the protection of, abused
1-3 children; providing a criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 17.03, Family Code, is amended by adding
1-6 Subsection (j) to read as follows:
1-7 (j) When a child is taken into possession under this
1-8 section, the person taking the child into possession must make
1-9 every reasonable effort to place the child in the child's home if a
1-10 person entitled to possession of the child can care for the child
1-11 in the home. If a parent or legal guardian of the child is not
1-12 available to take possession of the child, the person taking the
1-13 child into possession must make every reasonable effort to place
1-14 the child with another parent or relative who is able to provide
1-15 the child with a safe environment on a temporary basis.
1-16 SECTION 2. Section 34.011, Family Code, is amended to read
1-17 as follows:
1-18 Sec. 34.011. Form. The <Texas> Department of Protective and
1-19 Regulatory <Human> Services shall promulgate a form and cause a
1-20 sample to be distributed for the reporting of information or
1-21 observations about suspected occurrences of child abuse as required
1-22 by Section 34.01 of this code. Copies of the form shall be
1-23 distributed to all licensed hospitals in this state to be available
1-24 for use without charge by hospital employees, physicians, patients,
2-1 and other persons. The form shall include a statement that child
2-2 abuse reports are confidential and that information contained in
2-3 the reports, including the name of the person making the report,
2-4 may be used only for the purposes consistent with the investigation
2-5 of child abuse. The form shall give the address of the <Texas>
2-6 Department of Protective and Regulatory <Human> Services. Hospital
2-7 employees, physicians, patients, and other persons must complete
2-8 the form and return it to the <Texas> Department of Protective and
2-9 Regulatory <Human> Services.
2-10 SECTION 3. Section 34.02(a), Family Code, is amended to read
2-11 as follows:
2-12 (a) Nonaccusatory reports reflecting the reporter's belief
2-13 that a child has been, is being, or will be abused or neglected, or
2-14 has died of abuse or neglect, has violated the compulsory school
2-15 attendance laws on three or more occasions, or has, on three or
2-16 more occasions, been voluntarily absent from his home without the
2-17 consent of his parent or guardian for a substantial length of time
2-18 or without the intent to return shall be made to:
2-19 (1) any local or state law enforcement agency;
2-20 (2) the <Texas> Department of Protective and
2-21 Regulatory <Human> Services;
2-22 (3) the state agency that operates, licenses,
2-23 certifies, or registers the facility in which the alleged abuse or
2-24 neglect occurred; or
2-25 (4) the agency designated by the court to be
2-26 responsible for the protection of children.
2-27 SECTION 4. Subchapter A, Chapter 34, Family Code, is amended
3-1 by adding Section 34.0311 to read as follows:
3-2 Sec. 34.0311. MANIPULATION OF CHILD TO MAKE FALSE REPORT.
3-3 (a) A person commits an offense if the person knowingly or
3-4 intentionally manipulates a child into making a statement that
3-5 becomes the basis of an allegation in a report of sexual, physical,
3-6 or emotional abuse or neglect of the child.
3-7 (b) An offense under this section is a Class A misdemeanor.
3-8 (c) In this section, "manipulation" includes:
3-9 (1) repeated questioning of the child for the purpose
3-10 of causing the child to make a false statement alleging abuse or
3-11 neglect;
3-12 (2) rehearsing answers with the child;
3-13 (3) hypnosis of the child; and
3-14 (4) offering a reward or threatening to punish the
3-15 child.
3-16 SECTION 5. Section 34.05, Family Code, is amended to read as
3-17 follows:
3-18 Sec. 34.05. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
3-19 (a) Unless the report alleges that the abuse or neglect occurred
3-20 in a facility operated, licensed, certified, or registered by
3-21 another state agency, the <Texas> Department of Protective and
3-22 Regulatory <Human> Services or the agency designated by the court
3-23 to be responsible for the protection of children shall make a
3-24 thorough investigation promptly after receiving either the oral or
3-25 written report of child abuse or neglect by a person responsible
3-26 for a child's care, custody, or welfare. If the report is
3-27 anonymous, the department shall make the investigation after
4-1 determining that there is some objective evidence to corroborate
4-2 the report as prescribed by Section 34.053 of this code. If the
4-3 report alleges that the abuse or neglect occurred in a facility
4-4 operated, licensed, certified, or registered by another state
4-5 agency, that agency shall investigate the report as prescribed by
4-6 Subchapter B of this chapter. If the report alleges child abuse or
4-7 neglect in a location other than a facility operated, licensed,
4-8 certified, or registered by a state agency and by a person other
4-9 than a person responsible for a child's care, custody, or welfare,
4-10 the department is not required to investigate the report. The
4-11 appropriate state or local law enforcement agency shall investigate
4-12 that report if that agency determines an investigation should be
4-13 conducted. The department by rule shall <may> assign priorities to
4-14 investigations based on the severity and immediacy of the alleged
4-15 harm to the child. <If the department establishes a priority
4-16 system, the department shall adopt the system by rule.> The
4-17 primary purpose of the investigation shall be the protection of the
4-18 child by determining whether in-home crisis intervention and
4-19 education or other child and family services are necessary to
4-20 protect the child from abuse or neglect.
4-21 (b) The department shall conduct an investigation for
4-22 observable and objective indications that abuse or neglect has
4-23 probably occurred or is likely to occur.
4-24 (c) If the department determines that in-home crisis
4-25 intervention is necessary and justified, the department shall make
4-26 every reasonable effort to maintain the child in the child's home.
4-27 (d) In order to protect the child from abuse or neglect, the
5-1 department shall take every reasonable measure necessary to
5-2 preserve the continuity of the child's living arrangements and
5-3 normal family relationships within a safe environment.
5-4 (e) <(b)> As necessary to complete a thorough investigation,
5-5 the department or agency shall collect information about
5-6 <determine>:
5-7 (1) objective indicators that <the nature, extent, and
5-8 cause of the> abuse or neglect may have occurred;
5-9 (2) the identity of the person alleged to be
5-10 responsible for the abuse or neglect;
5-11 (3) the names and conditions of the other children in
5-12 the home;
5-13 (4) an evaluation of the parents or persons
5-14 responsible for the care of the child;
5-15 (5) the adequacy of the home environment;
5-16 (6) the relationship of the child to the parents or
5-17 persons responsible for the care of the child; and
5-18 (7) all other pertinent data.
5-19 (f) <(c)> The investigation shall include a visit to the
5-20 child's home, unless the alleged risk of or actual abuse or neglect
5-21 can be confirmed or clearly ruled out without a home visit, and an
5-22 interview with and examination of the subject child.
5-23 (g) The interview with and examination of the child may be
5-24 conducted at any reasonable time and at any reasonable place,
5-25 including the child's school. The investigation may include an
5-26 interview with the child's parents and an interview with and
5-27 examination of any child in the home. The investigation may
6-1 include a medical, psychological, or psychiatric examination of any
6-2 child in that home. If admission to the home, school, or any place
6-3 where the child may be cannot be obtained, then the juvenile court,
6-4 district court, or other court having family law jurisdiction, upon
6-5 cause shown, shall order the parents or the persons responsible for
6-6 the care of the children, or the person in charge of any place
6-7 where the child may be, to allow entrance for the interview, the
6-8 examination, and the investigation. If the parents or person
6-9 responsible for the child's care does not consent to a medical,
6-10 psychological, or psychiatric examination of the child that is
6-11 requested by the department or agency, the juvenile court, district
6-12 court, or other court having family law jurisdiction, upon cause
6-13 shown, shall order the examination to be made at the times and
6-14 places designated by the court. The investigation may include an
6-15 inquiry into the possibility that the child, a parent, or a person
6-16 responsible for the care of the child has a history of mental
6-17 illness. If the parents or person responsible for the care of the
6-18 child does not allow the department or agency to have access to
6-19 mental health records requested by the department or agency, the
6-20 juvenile court, district court, or other court having family law
6-21 jurisdiction, on good cause shown, shall by order allow the
6-22 department or agency to have access to the records under terms and
6-23 conditions prescribed by the court. If the court determines that
6-24 the parent or person responsible for the care of the child is
6-25 indigent, the court shall appoint an attorney to represent the
6-26 parent or person responsible for the child at the hearing to obtain
6-27 mental health records. The fees for said attorney shall be paid by
7-1 the department or agency. A parent or person responsible for the
7-2 child's care is entitled to notice and a hearing when the
7-3 department or agency seeks a court order to allow a medical,
7-4 psychological, or psychiatric examination or access to mental
7-5 health records. This access does not constitute a waiver of
7-6 confidentiality.
7-7 (h) <(d)> If, before the investigation is complete, the
7-8 opinion of the investigators is that immediate removal is necessary
7-9 to protect the child from <further> abuse or neglect in accordance
7-10 with the emergency guidelines in Chapter 17, the investigators
7-11 shall file a petition pursuant to that chapter <Chapter 17 of this
7-12 code> for temporary care and protection of the child.
7-13 (i) <(e)> The agency designated by the court to be
7-14 responsible for the protection of children or the department shall
7-15 make a complete written report of the investigation. The report,
7-16 together with its recommendations, shall be submitted to the
7-17 juvenile court or the district court, the district attorney, and
7-18 the appropriate law enforcement agency if sufficient grounds for
7-19 the institution of a suit affecting the parent-child relationship
7-20 are found. If the investigation relates to an allegation of abuse
7-21 or neglect in a facility operated, licensed, certified, or
7-22 registered by a state agency, the agency shall report as prescribed
7-23 by Subchapter B of this chapter. If the investigation relates to
7-24 an allegation of abuse or neglect in a facility that is not
7-25 operated, licensed, certified, or registered by a state agency, the
7-26 department shall submit the report of the investigation to the
7-27 policymaking body of the facility for any necessary corrective
8-1 action.
8-2 (j) <(f)> On the receipt of the report and recommendation
8-3 required by Subsection (i) <(e)> of this section, the court may
8-4 direct the investigator to file a petition seeking appropriate
8-5 relief under Subtitle A of this title.
8-6 (k) <(g)> If the department or agency has reason to believe
8-7 that a parent of the child may remove the child from the state
8-8 before the investigation is completed, the department or agency may
8-9 file an application for a temporary restraining order in any
8-10 district court without regard to continuing jurisdiction of the
8-11 child under Section 11.05 of this code. After a hearing on the
8-12 application, the court may enter a temporary restraining order
8-13 prohibiting the parent from removing the child from the state
8-14 pending completion of the investigation if the court finds that the
8-15 department or agency has probable cause to conduct the
8-16 investigation and has reason to believe that the parent may remove
8-17 the child from the state.
8-18 (l) Except as provided by Subsections (h) and (m), an
8-19 investigator may not request or recommend to a court a permanent
8-20 termination or modification of possession of or access to a child
8-21 who is the subject of an allegation of abuse or neglect before a
8-22 court.
8-23 (m) Except for the removal of a child from the child's home
8-24 under Chapter 17, if an investigator finds evidence during or at
8-25 the conclusion of the investigation that reasonably indicates that
8-26 removal of a child from the child's home for any length of time may
8-27 be required as the least detrimental alternative to ensure the
9-1 protection of the child, the investigator shall present the
9-2 evidence to an appropriate court and on good cause shown request
9-3 the court to order the removal of the child. An investigator must
9-4 make a reasonable effort to provide written notice to the parent or
9-5 legal guardian of the child before the department petitions a court
9-6 for removal of the child under this subsection. The notice must
9-7 inform the parent or guardian that the parent or guardian has the
9-8 right to legal representation before the court and that the parent
9-9 or guardian may challenge the request for removal without
9-10 prejudicing the investigation.
9-11 (n) An investigator who finds evidence during or at the
9-12 conclusion of an investigation that reasonably indicates that some
9-13 form of in-home assistance to the family or child that does not
9-14 disrupt the usual living arrangements of the family and child may
9-15 be required as the least detrimental alternative to ensure the
9-16 protection of the child may request the parents or legal guardian
9-17 of the child to sign an agreement to participate in the in-home
9-18 assistance without obtaining a court order. An in-home assistance
9-19 program may only be implemented after the investigator has obtained
9-20 the signature of a parent or guardian to the agreement. If a
9-21 parent or guardian refuses to participate in an in-home assistance
9-22 program, the investigator may request an appropriate court to order
9-23 implementation of the program after providing written notice to the
9-24 parent or guardian that a request for a court order will be made.
9-25 SECTION 6. Section 34.051, Family Code, is amended to read
9-26 as follows:
9-27 Sec. 34.051. Information Relating to Investigation
10-1 Procedure. (a) As soon as possible after initiating an
10-2 investigation under this subchapter of a parent or other person
10-3 having legal custody of a child, the <Texas> Department of
10-4 Protective and Regulatory <Human> Services shall provide to the
10-5 person a brief and easily understood summary of:
10-6 (1) the department's procedures for conducting an
10-7 investigation of alleged child abuse or neglect, including:
10-8 (A) a description of the circumstances under
10-9 which the department would seek to remove the child from the home
10-10 through the judicial system; and
10-11 (B) an explanation that the law requires the
10-12 department to refer all reports of alleged child abuse or neglect
10-13 to a law enforcement agency for a possible investigation <a
10-14 separate determination> of whether a criminal violation occurred;
10-15 (2) the person's right to file a complaint with the
10-16 department or to request a review of the findings made by the
10-17 department in the investigation;
10-18 (3) the person's right to review all records of the
10-19 investigation unless the review would jeopardize an ongoing
10-20 criminal investigation;
10-21 (4) the person's right to seek legal counsel;
10-22 (5) references to the statutory and regulatory
10-23 provisions governing child abuse and neglect and how the person may
10-24 obtain copies of those provisions; and
10-25 (6) the process the person may use to acquire access
10-26 to the child if the child is removed from the home.
10-27 (b) The department shall provide the current address and
11-1 telephone number of the department to the person receiving the
11-2 information required under Subsection (a).
11-3 SECTION 7. Section 34.052(c), Family Code, is amended to
11-4 read as follows:
11-5 (c) If after a departmental investigation a parent, legal
11-6 guardian, or other person responsible for the care, custody, or
11-7 welfare of the child <the person> who the department alleges to
11-8 likely be at risk of abuse or neglect <has abused or neglected a
11-9 child> disputes the department's determination <of whether child
11-10 abuse or neglect occurred>, the person may request an
11-11 administrative review of the findings. A department employee in
11-12 administration who was not involved in or did not directly
11-13 supervise the investigation shall conduct the review. The review
11-14 must sustain, alter, or reverse the department's original findings
11-15 in the investigation.
11-16 SECTION 8. Section 34.053(a), Family Code, is amended to
11-17 read as follows:
11-18 (a) If the department receives an anonymous report of child
11-19 abuse or neglect by a person responsible for a child's care,
11-20 custody, or welfare, the department shall conduct a preliminary
11-21 investigation to determine if there is objective <any> evidence to
11-22 corroborate the report.
11-23 SECTION 9. Section 34.054, Family Code, is amended to read
11-24 as follows:
11-25 Sec. 34.054. INVESTIGATION STANDARDS. (a) The <Texas>
11-26 Department of Protective and Regulatory <Human> Services by rule
11-27 shall develop and adopt uniform <voluntary> standards for persons
12-1 in the department who investigate suspected child abuse at the
12-2 state or local level. The standards adopted by the department
12-3 shall be considered by another agency that investigates suspected
12-4 child abuse when the agency adopts standards and policies for
12-5 investigations by that agency. <The agency by rule must adopt the
12-6 standards for the standards to be effective.> The standards shall
12-7 encourage professionalism and consistency and require objectivity
12-8 in the investigation of suspected child abuse.
12-9 (b) The standards must require <provide for> a minimum
12-10 number of hours of annual professional training for interviewers
12-11 and investigators of suspected child abuse.
12-12 (c) The youth care investigations oversight panel shall
12-13 review the professional training curriculum annually to ensure that
12-14 the curriculum is up-to-date and consistent with current research
12-15 by nationally recognized behavioral scientists, including clinical
12-16 child psychologists, child psychiatrists, and childhood
12-17 behaviorists with expertise in prevention of abuse and neglect and
12-18 treatment of children at risk of abuse and neglect, on:
12-19 (1) child abuse;
12-20 (2) indicators of a false allegation of child abuse;
12-21 (3) signs of a fabrication of child abuse; and
12-22 (4) methods of preventing and treating child abuse.
12-23 (d) <(c)> The professional training curriculum developed
12-24 under this section must include information concerning:
12-25 (1) recognizing physical abuse, including
12-26 distinguishing abuse from ordinary childhood injuries;
12-27 (2) recognizing signs of psychological abuse;
13-1 (3) available treatment resources; <and>
13-2 (4) the incidence and types of reports of child abuse
13-3 that are received by the investigating agencies, including
13-4 information concerning false reports and the need to inform persons
13-5 suspected of making a false report of the provisions of Section
13-6 34.031 of this code and Section 12.22, Penal Code; and
13-7 (5) procedures for conducting an investigation of
13-8 child abuse or neglect that includes the gathering of all relevant
13-9 evidence and reaching a conclusion based on an objective
13-10 examination of all relevant evidence.
13-11 (e) <(d)> The standards must:
13-12 (1) recommend that videotaped and audiotaped
13-13 interviews with a suspected victim be uninterrupted;
13-14 (2) recommend a maximum number of interviews with and
13-15 examinations of a suspected victim;
13-16 (3) establish <recommend> procedures to preserve
13-17 evidence, including the original notes, videotapes, and audiotapes;
13-18 <and>
13-19 (4) require <recommend> that an investigator of
13-20 suspected child abuse make a reasonable effort to locate and inform
13-21 each parent of a child of any report of abuse relating to the
13-22 child; and
13-23 (5) establish procedures that prohibit an investigator
13-24 from using interview techniques with a child that manipulate the
13-25 child into making a statement that alleges abuse or neglect,
13-26 including:
13-27 (A) repeated questioning for the purpose of
14-1 causing a child to make a false statement alleging abuse or
14-2 neglect;
14-3 (B) rehearsing answers;
14-4 (C) hypnosis; and
14-5 (D) offering a reward or threatening to punish.
14-6 SECTION 10. Subchapter A, Chapter 34, Family Code, is
14-7 amended by adding Section 34.056 to read as follows:
14-8 Sec. 34.056. EDUCATIONAL REQUIREMENTS. To become an
14-9 investigator or supervisor of an investigator under this chapter,
14-10 an employee must, at a minimum, have a bachelor's degree.
14-11 SECTION 11. Section 34.23(c), Family Code, is amended to
14-12 read as follows:
14-13 (c) If the state agency finds evidence indicating that a
14-14 child may have <has> been <or may be> abused or neglected, the
14-15 agency shall <submit a copy of the> report <to> the evidence to the
14-16 appropriate law enforcement agency.
14-17 SECTION 12. Subchapter B, Chapter 34, Family Code, is
14-18 amended by adding Section 34.25 to read as follows:
14-19 Sec. 34.25. YOUTH CARE INVESTIGATIONS OVERSIGHT PANEL. (a)
14-20 The youth care investigations oversight panel is established.
14-21 (b) The oversight panel consists of nine members, two of
14-22 whom are appointed from the house of representatives by the speaker
14-23 of the house, two of whom are appointed from the senate by the
14-24 lieutenant governor, and five of whom are persons with advanced
14-25 degrees and training and practical experience in subjects related
14-26 to child abuse treatment and prevention or parents appointed by the
14-27 governor.
15-1 (c) The oversight panel shall meet to review the complaint
15-2 procedures and child protective services of the Department of
15-3 Protective and Regulatory Services.
15-4 (d) A member of the oversight panel serves at the pleasure
15-5 of the official who appointed the member.
15-6 SECTION 13. Section 34.50(1), Family Code, is amended to
15-7 read as follows:
15-8 (1) "Child at risk" <"Abused child"> means a child who
15-9 by determination of the department has manifested objective
15-10 indications, or whose home environment has manifested objective
15-11 indications, of a likelihood that the child has been, is being, or
15-12 will be abused or neglected sufficient to qualify for in-home
15-13 intervention <suffered abuse or neglect> <by a person responsible for
15-14 the child's care, custody, or welfare>.
15-15 SECTION 14. Sections 34.51(a) and (b), Family Code, are
15-16 amended to read as follows:
15-17 (a) When the department provides services directly or by
15-18 contract to a <an abused> child at risk and the child's family, the
15-19 services shall be designed to prevent <further> abuse, to
15-20 ameliorate <alleviate> the effects of possible <the> abuse that may
15-21 have occurred <suffered>, to prevent removal of the child from the
15-22 home, and to provide reunification services when appropriate for
15-23 the return of the child to the home. The department shall
15-24 emphasize ameliorative services for <sexually abused> children at
15-25 risk of sexual abuse.
15-26 (b) The department shall provide or contract for necessary
15-27 services to a <an abused> child at risk and the child's family
16-1 whether the child remains in or is removed from the family home.
16-2 If parental rights have been terminated, services may be provided
16-3 only to the child.
16-4 SECTION 15. Section 34.52, Family Code, is amended to read
16-5 as follows:
16-6 Sec. 34.52. STANDARDS AND EFFECTIVENESS. (a) The
16-7 department, with assistance from nationally recognized behavioral
16-8 research scientists, including clinical child psychologists, child
16-9 psychiatrists, and childhood behaviorists <national organizations>
16-10 with expertise in prevention of child abuse and neglect and
16-11 treatment of children at risk of abuse or neglect <child protective
16-12 services>, shall define a minimal baseline of in-home and foster
16-13 care services for <abused> children at risk of abuse or neglect
16-14 that meets the professionally recognized standards for those
16-15 services. The department shall attempt to provide services at a
16-16 standard not lower than the minimal baseline standard.
16-17 (b) The department, with assistance from nationally
16-18 recognized behavioral research scientists, including clinical child
16-19 psychologists, child psychiatrists, and childhood behaviorists
16-20 <national organizations> with expertise in prevention of child
16-21 abuse and neglect and treatment of children at risk of abuse or
16-22 neglect <child protective services>, shall develop outcome measures
16-23 to track and monitor the effectiveness of in-home and foster care
16-24 services.
16-25 SECTION 16. Section 34.53(a), Family Code, is amended to
16-26 read as follows:
16-27 (a) Except as provided by Subsection (b) of this section,
17-1 the court on request of the department may order the parent,
17-2 managing conservator, guardian, or other member of the at-risk
17-3 <abused> child's household to participate in the services the
17-4 department provides or purchases for alleviating the effects of
17-5 abuse that may have occurred and to permit the at-risk <abused>
17-6 child and any siblings to receive the services. The department may
17-7 request the court to order the parent, managing conservator,
17-8 guardian, or other member of the at-risk <abused> child's household
17-9 to participate in the services whether the child resides in the
17-10 home or has been removed from the home. If the person ordered to
17-11 participate in the services fails to follow the court's order, the
17-12 court may impose community service as a sanction for contempt.
17-13 SECTION 17. This Act takes effect September 1, 1995.
17-14 SECTION 18. The importance of this legislation and the
17-15 crowded condition of the calendars in both houses create an
17-16 emergency and an imperative public necessity that the
17-17 constitutional rule requiring bills to be read on three several
17-18 days in each house be suspended, and this rule is hereby suspended.