1-1 By: Leedom S.B. No. 262
1-2 (In the Senate - Filed January 18, 1995; January 19, 1995,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 April 4, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0; April 4, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 262 By: Harris
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to reports of, and suits for the protection of, abused
1-11 children; providing a criminal penalty.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 17.03, Family Code, is amended by adding
1-14 Subsection (j) to read as follows:
1-15 (j) When a child is taken into possession under this
1-16 section, the person taking the child into possession must make
1-17 every reasonable effort to place the child in the child's home if a
1-18 person entitled to possession of the child can care for the child
1-19 in the home. If a person entitled to possession is not available
1-20 to care for the child in the child's home, the person taking the
1-21 child into possession must make every reasonable effort to place
1-22 the child with another parent or relative who is able to provide
1-23 the child with a safe environment on a temporary basis.
1-24 SECTION 2. Section 17.04, Family Code, is amended to read as
1-25 follows:
1-26 Sec. 17.04. FULL ADVERSARY HEARING; FINDINGS OF THE COURT.
1-27 (a) Unless the child has already been returned to the parent,
1-28 managing conservator, possessory conservator, guardian, caretaker,
1-29 or custodian entitled to possession and the <any> temporary order,
1-30 if any, has been <orders> dissolved, a full adversary hearing shall
1-31 be held not later than the 14th day after the date the child was
1-32 taken into possession by the governmental entity <of:>
1-33 <(1) the taking of the child into possession by
1-34 authority of Subdivision (3) or (4) of Subsection (a) of Section
1-35 17.03 of this code;>
1-36 <(2) the taking of the child into possession by
1-37 authority of a temporary restraining order or attachment of a child
1-38 issued under Section 17.02 of this code; or>
1-39 <(3) the filing of the suit provided under Subsection
1-40 (g) of Section 17.03 of this code>.
1-41 (b) At the conclusion of the full adversary hearing, the
1-42 court shall order the return of the child to the parent, managing
1-43 conservator, possessory conservator, guardian, caretaker, or
1-44 custodian entitled to possession unless the court finds sufficient
1-45 evidence to satisfy a person of ordinary prudence and caution that:
1-46 (1) there was <is> a danger to the physical health or
1-47 safety of the child which was caused by an <any> act or a failure
1-48 to act of the person entitled to possession and it was contrary to
1-49 the welfare of the child to remain in the home;
1-50 (2) the urgent need for protection required the
1-51 immediate removal of the child, making reasonable efforts to
1-52 eliminate or prevent the child's removal impossible or
1-53 unreasonable; and
1-54 (3) in spite of reasonable efforts to eliminate the
1-55 need for the child's removal and enable the child to return home,
1-56 there is a substantial risk of a continuing danger which makes the
1-57 return of child to the child's home contrary to the child's
1-58 welfare.
1-59 (c) If the court finds sufficient evidence to satisfy a
1-60 person of ordinary prudence and caution that there is a continuing
1-61 danger to the physical health or safety of the child and that it is
1-62 contrary to the welfare of the child to remain in the home, the
1-63 court shall issue an appropriate temporary order <orders> under
1-64 Chapter 11 <Section 11.11> of this code.
1-65 (d) In determining whether there is a continuing danger to
1-66 the physical health or safety of the child, the court may consider
1-67 whether the household to which the child would be returned has in
1-68 it a person who:
2-1 (1) <to whom the child would be returned> has abused
2-2 or neglected another child in a manner that caused serious injury
2-3 to or the death of the other child; or
2-4 (2) has sexually abused another child.
2-5 SECTION 3. Subchapter A, Chapter 34, Family Code, is amended
2-6 by adding Section 34.0311 to read as follows:
2-7 Sec. 34.0311. CAUSING CHILD TO MAKE FALSE REPORT OF ABUSE OR
2-8 NEGLECT. (a) A person commits an offense if the person knowingly
2-9 or intentionally causes a child to make a false statement that
2-10 becomes the basis of an allegation in a report of sexual, physical,
2-11 or emotional abuse or neglect of the child.
2-12 (b) An offense under this section is a Class A misdemeanor.
2-13 SECTION 4. Section 34.05, Family Code, is amended to read as
2-14 follows:
2-15 Sec. 34.05. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
2-16 (a) Unless the report alleges that the abuse or neglect occurred
2-17 in a facility operated, licensed, certified, or registered by
2-18 another state agency, the <Texas> Department of Protective and
2-19 Regulatory <Human> Services or the agency designated by the court
2-20 to be responsible for the protection of children shall make a
2-21 thorough investigation promptly after receiving either the oral or
2-22 written report of child abuse or neglect by a person responsible
2-23 for a child's care, custody, or welfare. If the report is
2-24 anonymous, the department shall make the investigation after
2-25 determining that there is some credible evidence to corroborate the
2-26 report as prescribed by Section 34.053 of this code. If the report
2-27 alleges that the abuse or neglect occurred in a facility operated,
2-28 licensed, certified, or registered by another state agency, that
2-29 agency shall investigate the report as prescribed by Subchapter B
2-30 of this chapter. If the report alleges child abuse or neglect in a
2-31 location other than a facility operated, licensed, certified, or
2-32 registered by a state agency and by a person other than a person
2-33 responsible for a child's care, custody, or welfare, the department
2-34 is not required to investigate the report. The appropriate state
2-35 or local law enforcement agency shall investigate that report if
2-36 that agency determines an investigation should be conducted. The
2-37 department may by rule assign priorities to investigations based on
2-38 the severity and immediacy of the alleged harm to the child. <If
2-39 the department establishes a priority system, the department shall
2-40 adopt the system by rule.> The primary purpose of the
2-41 investigation shall be the protection of the child by determining
2-42 whether in-home crisis intervention and education, other child and
2-43 family services, or removal is necessary to protect the child from
2-44 abuse or neglect.
2-45 (b) If the department determines that in-home crisis
2-46 intervention is necessary and justified, the department shall make
2-47 every reasonable effort to maintain the child in the child's home.
2-48 (c) In protecting the child from abuse or neglect, the
2-49 department shall make every reasonable effort to preserve the
2-50 continuity of the child's living arrangements and normal family
2-51 relationships consistent with providing the child a safe
2-52 environment.
2-53 (d) As necessary to complete a thorough investigation, the
2-54 department or agency shall gather information concerning
2-55 <determine>:
2-56 (1) the nature, extent, and cause of the abuse or
2-57 neglect alleged to have occurred;
2-58 (2) the identity of the person alleged to be
2-59 responsible for the abuse or neglect;
2-60 (3) the names and conditions of the other children in
2-61 the home;
2-62 (4) an evaluation of the parents or persons
2-63 responsible for the care of the child;
2-64 (5) the adequacy of the home environment;
2-65 (6) the relationship of the child to the parents or
2-66 persons responsible for the care of the child; and
2-67 (7) all other pertinent data.
2-68 (e) <(c)> The investigation shall include a visit to the
2-69 child's home, unless the alleged risk of or actual abuse or neglect
2-70 can be confirmed or clearly ruled out without a home visit, and an
3-1 interview with and examination of the subject child.
3-2 (f) The interview with and examination of the child may be
3-3 conducted at any reasonable time and at any reasonable place,
3-4 including the child's school. The investigation may include an
3-5 interview with the child's parents and an interview with and
3-6 examination of any child in the home. The investigation may
3-7 include a medical, psychological, or psychiatric examination of any
3-8 child in that home. If admission to the home, school, or any place
3-9 where the child may be cannot be obtained, then the juvenile court,
3-10 district court, or other court having family law jurisdiction, upon
3-11 cause shown, shall order the parents or the persons responsible for
3-12 the care of the children, or the person in charge of any place
3-13 where the child may be, to allow entrance for the interview, the
3-14 examination, and the investigation. If the parents or person
3-15 responsible for the child's care does not consent to a medical,
3-16 psychological, or psychiatric examination of the child that is
3-17 requested by the department or agency, the juvenile court, district
3-18 court, or other court having family law jurisdiction, upon cause
3-19 shown, shall order the examination to be made at the times and
3-20 places designated by the court. The investigation may include an
3-21 inquiry into the possibility that the child, a parent, or a person
3-22 responsible for the care of the child has a history of mental
3-23 illness. If the parents or person responsible for the care of the
3-24 child does not allow the department or agency to have access to
3-25 mental health records requested by the department or agency, the
3-26 juvenile court, district court, or other court having family law
3-27 jurisdiction, on good cause shown, shall by order allow the
3-28 department or agency to have access to the records under terms and
3-29 conditions prescribed by the court. If the court determines that
3-30 the parent or person responsible for the care of the child is
3-31 indigent, the court shall appoint an attorney to represent the
3-32 parent or person responsible for the child at the hearing to obtain
3-33 mental health records. The fees for said attorney shall be paid by
3-34 the department or agency. A parent or person responsible for the
3-35 child's care is entitled to notice and a hearing when the
3-36 department or agency seeks a court order to allow a medical,
3-37 psychological, or psychiatric examination or access to mental
3-38 health records. This access does not constitute a waiver of
3-39 confidentiality.
3-40 (g) <(d)> If, before the investigation is complete, the
3-41 opinion of the investigators is that immediate removal is necessary
3-42 to protect the child from <further> abuse or neglect in accordance
3-43 with the emergency guidelines in Chapter 17 of this code, the
3-44 investigators shall file a petition pursuant to that chapter
3-45 <Chapter 17 of this code> for temporary care and protection of the
3-46 child.
3-47 (h) <(e)> The agency designated by the court to be
3-48 responsible for the protection of children or the department shall
3-49 make a complete written report of the investigation. The report,
3-50 together with its recommendations, shall be submitted to the
3-51 juvenile court or the district court, the district attorney, and
3-52 the appropriate law enforcement agency if sufficient grounds for
3-53 the institution of a suit affecting the parent-child relationship
3-54 are found. If the investigation relates to an allegation of abuse
3-55 or neglect in a facility operated, licensed, certified, or
3-56 registered by a state agency, the agency shall report as prescribed
3-57 by Subchapter B of this chapter. If the investigation relates to
3-58 an allegation of abuse or neglect in a facility that is not
3-59 operated, licensed, certified, or registered by a state agency, the
3-60 department shall submit the report of the investigation to the
3-61 policymaking body of the facility for any necessary corrective
3-62 action.
3-63 (i) <(f)> On the receipt of the report and recommendation
3-64 required by Subsection (h) <(e)> of this section, the court may
3-65 direct the investigator to file a petition seeking appropriate
3-66 relief under Subtitle A of this title.
3-67 (j) <(g)> If the department or agency has reason to believe
3-68 that a parent of the child may remove the child from the state
3-69 before the investigation is completed, the department or agency may
3-70 file an application for a temporary restraining order in any
4-1 district court without regard to continuing jurisdiction of the
4-2 child under Section 11.05 of this code. After a hearing on the
4-3 application, the court may enter a temporary restraining order
4-4 prohibiting the parent from removing the child from the state
4-5 pending completion of the investigation if the court finds that the
4-6 department or agency has probable cause to conduct the
4-7 investigation and has reason to believe that the parent may remove
4-8 the child from the state.
4-9 (k) Except as provided in Chapter 17 of this code or by
4-10 filing with the court a petition seeking appropriate relief, the
4-11 department or agency may not force a parent to limit the parent's
4-12 right of possession of or access to a child.
4-13 SECTION 5. Section 34.051. Family Code, is amended to read
4-14 as follows:
4-15 Sec. 34.051. Information Relating to Investigation
4-16 Procedure. (a) As soon as possible after initiating an
4-17 investigation under this subchapter of a parent or other person
4-18 having legal custody of a child, the <Texas> Department of
4-19 Protective and Regulatory <Human> Services shall provide to the
4-20 person a brief and easily understood summary of:
4-21 (1) the department's procedures for conducting an
4-22 investigation of alleged child abuse or neglect, including:
4-23 (A) a description of the circumstances under
4-24 which the department would seek to remove the child from the home
4-25 through the judicial system; and
4-26 (B) an explanation that the law requires the
4-27 department to refer all reports of alleged child abuse or neglect
4-28 to a law enforcement agency for a possible investigation <separate
4-29 determination> of whether a criminal violation occurred;
4-30 (2) the person's right to file a complaint with the
4-31 department or to request a review of the findings made by the
4-32 department in the investigation;
4-33 (3) the person's right to review all records of the
4-34 investigation unless the review would jeopardize an ongoing
4-35 criminal investigation;
4-36 (4) the person's right to seek legal counsel;
4-37 (5) references to the statutory and regulatory
4-38 provisions governing child abuse and neglect and how the person may
4-39 obtain copies of those provisions; and
4-40 (6) the process the person may use to acquire access
4-41 to the child if the child is removed from the home.
4-42 (b) The department shall provide the current address and
4-43 telephone number of the department to each person receiving the
4-44 information required under Subsection (a).
4-45 SECTION 6. Subsection (a), Section 34.053, Family Code, is
4-46 amended to read as follows:
4-47 (a) If the department receives an anonymous report of child
4-48 abuse or neglect by a person responsible for a child's care,
4-49 custody, or welfare, the department shall conduct a preliminary
4-50 investigation to determine if there is some credible <any> evidence
4-51 to corroborate the report.
4-52 SECTION 7. Section 34.054, Family Code, is amended to read
4-53 as follows:
4-54 Sec. 34.054. Investigation Standards. (a) The <Texas>
4-55 Department of Protective and Regulatory <Human> Services by rule
4-56 shall develop and adopt uniform <voluntary> standards for persons
4-57 in the department who investigate suspected child abuse at the
4-58 state or local level. The standards adopted by the department
4-59 shall be considered by another agency that investigates suspected
4-60 child abuse when the agency adopts standards and policies for
4-61 investigations by that agency <agency by rule must adopt the
4-62 standards for the standards to be effective>. The standards shall
4-63 encourage professionalism and consistency and require objectivity
4-64 in the investigation of suspected child abuse.
4-65 (b) The standards must require <provide for> a minimum
4-66 number of hours of annual professional training for interviewers
4-67 and investigators of suspected child abuse.
4-68 (c) The department shall review annually the professional
4-69 training curriculum for investigators and supervisors of
4-70 investigators to ensure that the curriculum is up-to-date and
5-1 consistent with current research by nationally recognized
5-2 behavioral scientists, including clinical child psychologists,
5-3 child psychiatrists, and childhood behaviorists with expertise in
5-4 prevention of abuse and neglect and treatment of children at risk
5-5 of abuse and neglect, on:
5-6 (1) child abuse;
5-7 (2) indicators of a false allegation of child abuse;
5-8 and
5-9 (3) methods of preventing and treating child abuse.
5-10 (d) The professional training curriculum developed under
5-11 this section must include information concerning:
5-12 (1) recognizing physical abuse, including
5-13 distinguishing abuse from ordinary childhood injuries;
5-14 (2) recognizing signs of psychological abuse;
5-15 (3) available treatment resources; <and>
5-16 (4) the incidence and types of reports of child abuse
5-17 that are received by the investigating agencies, including
5-18 information concerning false reports and the need to inform persons
5-19 suspected of making a false report of the provisions of Section
5-20 34.031 and Section 12.22, Penal Code; and
5-21 (5) procedures for conducting an investigation of
5-22 child abuse or neglect that include the gathering of all relevant
5-23 evidence and reaching a conclusion based on an objective
5-24 examination of all relevant evidence.
5-25 (e) <(d)> The standards must:
5-26 (1) recommend that videotaped and audiotaped
5-27 interviews with a suspected victim be uninterrupted;
5-28 (2) recommend a maximum number of interviews with and
5-29 examinations of a suspected victim;
5-30 (3) establish <recommend> procedures to preserve
5-31 evidence, including the case <original> notes, videotapes, and
5-32 audiotapes; <and>
5-33 (4) require <recommend> that an investigator of
5-34 suspected child abuse make a reasonable effort to locate and inform
5-35 each parent of a child of any report of abuse relating to the
5-36 child; and
5-37 (5) establish procedures that prohibit an investigator
5-38 from using interview techniques that cause the child to make a
5-39 false statement that alleges abuse or neglect.
5-40 SECTION 8. Subchapter A, Chapter 34, Family Code, is amended
5-41 by adding Section 34.056 to read as follows:
5-42 Sec. 34.056. EDUCATIONAL REQUIREMENTS. To become an
5-43 investigator or supervisor of an investigator under this chapter,
5-44 an employee must, at a minimum, have a bachelor's degree.
5-45 SECTION 9. Subsection (c), Section 34.23, Family Code, is
5-46 amended to read as follows:
5-47 (c) If the state agency finds evidence indicating that a
5-48 child may have <has> been <or may be> abused or neglected, the
5-49 agency shall <submit a copy of the> report <to> the evidence to the
5-50 appropriate law enforcement agency.
5-51 SECTION 10. Subsections (a) and (b), Sections 34.51, Family
5-52 Code, are amended to read as follows:
5-53 (a) When the department provides services directly or by
5-54 contract to a <an abused> child and the child's family, the
5-55 services shall be designed to prevent <further> abuse, to
5-56 ameliorate <alleviate> the effects of <the> abuse that may have
5-57 occurred <suffered>, to prevent removal of the child from the home,
5-58 and to provide reunification services when appropriate for the
5-59 return of the child to the home. The department shall emphasize
5-60 ameliorative services for <sexually abused> children at risk of
5-61 sexual abuse.
5-62 (b) The department shall provide or contract for necessary
5-63 services to a <an abused> child and the child's family whether the
5-64 child remains in or is removed from the family home. If parental
5-65 rights have been terminated, services may be provided only to the
5-66 child.
5-67 SECTION 11. Subsection (a), Section 34.53, Family Code, is
5-68 amended to read as follows:
5-69 (a) Except as provided by Subsection (b) of this section,
5-70 the court on request of the department may order the parent,
6-1 managing conservator, guardian, or other member of the <abused>
6-2 child's household to participate in the services the department
6-3 provides or purchases for alleviating the effects of abuse that may
6-4 have occurred and to permit the <abused> child and any siblings to
6-5 receive the services. The department may request the court to order
6-6 the parent, managing conservator, guardian, or other member of the
6-7 <abused> child's household to participate in the services whether
6-8 the child resides in the home or has been removed from the home. If
6-9 the person ordered to participate in the services fails to follow
6-10 the court's order, the court may impose community service as a
6-11 sanction for contempt.
6-12 SECTION 12. This Act takes effect September 1, 1995.
6-13 SECTION 13. The importance of this legislation and the
6-14 crowded condition of the calendars in both houses create an
6-15 emergency and an imperative public necessity that the
6-16 constitutional rule requiring bills to be read on three several
6-17 days in each house be suspended, and this rule is hereby suspended.
6-18 * * * * *