By: Shapiro S.B. No. 181
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the conservatorship of a child by the Department of
1-2 Protective and Regulatory Services.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (c), Section 262.201, Family Code, is
1-5 amended to read as follows:
1-6 (c) If the court finds sufficient evidence to satisfy a
1-7 person of ordinary prudence and caution that there is a continuing
1-8 danger to the physical health or safety of the child and for the
1-9 child to remain in the home is contrary to the welfare of the
1-10 child, the court shall:
1-11 (1) issue an appropriate temporary order under Chapter
1-12 105; and
1-13 (2) inform each parent in open court that parental and
1-14 custodial rights and duties may be subject to restriction or to
1-15 termination unless the parent or parents are willing and able to
1-16 provide the child with a safe environment.
1-17 SECTION 2. Subchapter A, Chapter 263, Family Code, is
1-18 amended by adding Section 263.006 to read as follows:
1-19 Sec. 263.006. WARNING TO PARENTS. At the status hearing
1-20 under Subchapter C and at each permanency hearing under Subchapter
1-21 D held after the court has rendered a temporary order appointing
1-22 the department as temporary managing conservator, the court shall
1-23 inform each parent in open court that parental and custodial rights
2-1 and duties may be subject to restriction or to termination unless
2-2 the parent or parents are willing and able to provide the child
2-3 with a safe environment.
2-4 SECTION 3. Chapter 263, Family Code, is amended by adding
2-5 Subchapters E and F to read as follows:
2-6 SUBCHAPTER E. FINAL ORDER FOR CHILD UNDER DEPARTMENT CARE
2-7 Sec. 263.401. DISMISSAL AFTER ONE YEAR; EXTENSION.
2-8 (a) Unless the court has rendered a final order or granted an
2-9 extension under Subsection (b), on the first Monday after the first
2-10 anniversary of the date the court rendered a temporary order
2-11 appointing the department as temporary managing conservator, the
2-12 court shall dismiss the suit affecting the parent-child
2-13 relationship filed by the department that requests termination of
2-14 the parent-child relationship or requests that the department be
2-15 named conservator of the child.
2-16 (b) On or before the time described by Subsection (a) for
2-17 the dismissal of the suit, the court may extend the court's
2-18 jurisdiction of the suit for a period stated in the extension
2-19 order, but not longer than 180 days after the time described by
2-20 Subsection (a), if the court has continuing jurisdiction of the
2-21 suit and the appointment of the department as temporary managing
2-22 conservator is in the best interest of the child. If the court
2-23 grants an extension, the extension order must also:
2-24 (1) schedule the new date for dismissal of the suit;
2-25 and
3-1 (2) make further temporary orders for the safety and
3-2 welfare of the child as necessary to avoid further delay in
3-3 resolving the suit.
3-4 (c) If the court grants an extension, the court shall render
3-5 a final order or dismiss the suit on or before the date specified
3-6 in the extension order and may not grant an additional extension.
3-7 (d) For purposes of this section, a final order is an order
3-8 that:
3-9 (1) requires that a child be returned to the child's
3-10 parent;
3-11 (2) names a relative of the child or another person as
3-12 the child's managing conservator;
3-13 (3) without terminating the parent-child relationship,
3-14 appoints the department as the managing conservator of the child;
3-15 or
3-16 (4) terminates the parent-child relationship and
3-17 appoints a relative of the child, another suitable person, or the
3-18 department as managing conservator of the child.
3-19 Sec. 263.402. RETURN OF CHILD TO PARENT OR PLACEMENT WITH
3-20 RELATIVE. (a) Notwithstanding Section 263.401, the court may
3-21 retain jurisdiction and not dismiss the suit or render a final
3-22 order as required by that section if the court:
3-23 (1) finds that retaining jurisdiction under this
3-24 section is in the best interest of the child;
3-25 (2) orders the department to return the child to the
4-1 child's parent or to place the child with a relative of the child;
4-2 (3) requires that the department continue to serve as
4-3 temporary managing conservator of the child; and
4-4 (4) orders the department to monitor the child's
4-5 placement to ensure that the child is in a safe environment.
4-6 (b) If the court renders an order under this section, the
4-7 court must include in the order specific findings regarding the
4-8 grounds for the order.
4-9 (c) If the court renders an order under this section, the
4-10 court shall dismiss the suit not later than the 180th day after the
4-11 date the order is rendered.
4-12 Sec. 263.403. FINAL ORDER APPOINTING DEPARTMENT AS MANAGING
4-13 CONSERVATOR WITHOUT TERMINATING PARENTAL RIGHTS. (a) The court
4-14 may render a final order appointing the department as managing
4-15 conservator of the child without terminating the rights of the
4-16 parent of the child if the court finds that:
4-17 (1) appointment of a parent as managing conservator
4-18 would not be in the best interest of the child because the
4-19 appointment would significantly impair the child's physical health
4-20 or emotional development; and
4-21 (2) it would not be in the best interest of the child
4-22 to appoint a relative of the child or another person as managing
4-23 conservator.
4-24 (b) In determining whether the department should be
4-25 appointed as managing conservator of the child without terminating
5-1 the rights of a parent of the child, the court shall take the
5-2 following factors into consideration:
5-3 (1) that the child will reach 18 years of age in not
5-4 less than three years;
5-5 (2) that the child is 12 years of age or older and has
5-6 expressed a strong desire against termination or being adopted;
5-7 (3) that the child has special medical or behavioral
5-8 needs that make adoption of the child unlikely; and
5-9 (4) the needs and desires of the child.
5-10 (c) If the court renders an order under this section, the
5-11 court shall include in the order specific findings regarding the
5-12 grounds for the order.
5-13 (Sections 263.404-263.500 reserved for expansion
5-14 SUBCHAPTER F. PLACEMENT REVIEW HEARINGS
5-15 Sec. 263.501. PLACEMENT REVIEW AFTER FINAL ORDER. (a) If
5-16 the department has been named as a child's managing conservator in
5-17 a final order that does not include termination of parental rights,
5-18 the court shall conduct a placement review hearing at least once
5-19 every six months until the child becomes an adult.
5-20 (b) If the department has been named as a child's managing
5-21 conservator in a final order that terminates a parent's parental
5-22 rights, the court shall conduct a placement review hearing at least
5-23 once every six months until the date the child is adopted or the
5-24 child becomes an adult.
5-25 (c) Notice of a placement review hearing shall be given as
6-1 provided by Rule 21a, Texas Rules of Civil Procedure, to each
6-2 person entitled to notice of the hearing.
6-3 (d) The following are entitled to not less than 10 days'
6-4 notice of a placement review hearing:
6-5 (1) the department;
6-6 (2) the foster parent or director of the group home or
6-7 institution in which the child is residing;
6-8 (3) each parent of the child;
6-9 (4) each possessory conservator or guardian of the
6-10 child;
6-11 (5) the child's attorney ad litem and volunteer
6-12 advocate, if the appointments were not dismissed in the final
6-13 order; and
6-14 (6) any other person or agency named by the court as
6-15 having an interest in the child's welfare.
6-16 (e) The court may dispense with the requirement that the
6-17 child attend a placement review hearing.
6-18 Sec. 263.502. PLACEMENT REVIEW REPORT. (a) Not later than
6-19 the 10th day before the date set for a placement review hearing,
6-20 the department or other authorized agency shall file a placement
6-21 review report with the court and provide a copy to each person
6-22 entitled to notice under Section 263.501(d).
6-23 (b) For good cause shown, the court may order a different
6-24 time for filing the placement review report or may order that a
6-25 report is not required for a specific hearing.
7-1 (c) The placement review report must:
7-2 (1) evaluate whether the child's current placement is
7-3 appropriate for meeting the child's needs;
7-4 (2) evaluate whether efforts have been made to ensure
7-5 placement of the child in the least restrictive environment
7-6 consistent with the best interest and special needs of the child if
7-7 the child is placed in institutional care;
7-8 (3) identify the services that are needed to assist a
7-9 child who is at least 16 years of age in making the transition from
7-10 substitute care to independent living if the services are available
7-11 in the community;
7-12 (4) identify other plans or services that are needed
7-13 to meet the child's special needs or circumstances; and
7-14 (5) describe the efforts of the department or
7-15 authorized agency to place the child for adoption if parental
7-16 rights to the child have been terminated and the child is eligible
7-17 for adoption.
7-18 Sec. 263.503. PLACEMENT REVIEW HEARING; PROCEDURE. At each
7-19 placement review hearing, the court shall determine whether:
7-20 (1) the child's current placement is appropriate for
7-21 meeting the child's needs;
7-22 (2) efforts have been made to ensure placement of the
7-23 child in the least restrictive environment consistent with the best
7-24 interest and special needs of the child if the child is placed in
7-25 institutional care;
8-1 (3) the services that are needed to assist a child who
8-2 is at least 16 years of age in making the transition from
8-3 substitute care to independent living are available in the
8-4 community;
8-5 (4) other plans or services are needed to meet the
8-6 child's special needs or circumstances; and
8-7 (5) the department or authorized agency has exercised
8-8 due diligence in attempting to place the child for adoption if
8-9 parental rights to the child have been terminated and the child is
8-10 eligible for adoption.
8-11 SECTION 4. Section 263.201, Family Code, is amended to read
8-12 as follows:
8-13 Sec. 263.201. STATUS HEARING; TIME. Not later than the 60th
8-14 day after the date the court renders a temporary order appointing
8-15 the department as temporary managing conservator of a child [of a
8-16 full adversary hearing under Chapter 262], the court shall hold a
8-17 status hearing to review the child's status and the permanency plan
8-18 developed for the child.
8-19 SECTION 5. The heading to Subchapter D, Chapter 263, Family
8-20 Code, is amended to read as follows:
8-21 SUBCHAPTER D. PERMANENCY [REVIEW] HEARINGS
8-22 SECTION 6. Subsections (a) and (b), Section 263.301, Family
8-23 Code, are amended to read as follows:
8-24 (a) Notice of a permanency [review] hearing shall be given
8-25 as provided by Rule 21a, Texas Rules of Civil Procedure, to all
9-1 persons entitled to notice of the hearing.
9-2 (b) The following persons are entitled to at least 10 days'
9-3 notice of a permanency hearing [to review a child's placement] and
9-4 are entitled to present evidence and be heard at the hearing:
9-5 (1) the department;
9-6 (2) the foster parent or director of the group home or
9-7 institution where the child is residing;
9-8 (3) each parent of the child;
9-9 (4) the managing conservator or guardian of the child;
9-10 [and]
9-11 (5) an attorney ad litem appointed for the child under
9-12 Chapter 107;
9-13 (6) a volunteer advocate appointed for the child under
9-14 Chapter 107; and
9-15 (7) any other person or agency named by the court to
9-16 have an interest in the child's welfare.
9-17 SECTION 7. Section 263.302, Family Code, is amended to read
9-18 as follows:
9-19 Sec. 263.302. CHILD'S ATTENDANCE AT HEARING. The [court may
9-20 dispense with the attendance of the] child shall attend each
9-21 permanency hearing unless the court specifically excuses the
9-22 child's attendance. Failure by the child to attend a hearing does
9-23 not affect the validity of an order rendered at the [at a placement
9-24 review] hearing.
9-25 SECTION 8. Subchapter D, Chapter 263, Family Code, is
10-1 amended by adding Section 263.3025 to read as follows:
10-2 Sec. 263.3025. PERMANENCY PLAN. (a) The department shall
10-3 prepare a permanency plan for a child for whom the department has
10-4 been appointed temporary managing conservator. The department
10-5 shall give a copy of the plan to each person entitled to notice
10-6 under Section 263.301(b) not later than the 10th day before the
10-7 date of the child's first permanency hearing.
10-8 (b) In addition to the requirements of the department rules
10-9 governing permanency planning, the permanency plan must contain the
10-10 information required to be included in a permanency progress report
10-11 under Section 263.303.
10-12 (c) The department shall modify the permanency plan for a
10-13 child as required by the circumstances and needs of the child.
10-14 SECTION 9. Section 263.303, Family Code, is amended to read
10-15 as follows:
10-16 Sec. 263.303. PERMANENCY PROGRESS [STATUS] REPORT. (a) Not
10-17 later than the 10th day before the date set for each permanency
10-18 hearing other than the first permanency [review] hearing, the
10-19 department or other authorized agency shall file with the court and
10-20 provide to each party, the child's attorney ad litem, and the
10-21 child's volunteer advocate a permanency progress [status] report
10-22 unless the court orders a different period for providing the report
10-23 [or orders that a report is not required for a specific hearing].
10-24 (b) The permanency progress [status] report must:
10-25 (1) recommend that the suit be dismissed; or
11-1 (2) recommend that the suit continue and:
11-2 (A) identify the date for dismissal of the suit
11-3 under this chapter;
11-4 (B) provide:
11-5 (i) the name of any person entitled to
11-6 notice under Chapter 102 who has not been served;
11-7 (ii) a description of the efforts by the
11-8 department or another agency to locate and request service of
11-9 citation; and
11-10 (iii) a description of each parent's
11-11 assistance in providing information necessary to locate an unserved
11-12 party;
11-13 (C) evaluate [all relevant information
11-14 concerning each of the guidelines under this chapter and] the
11-15 parties' compliance with temporary orders and with the service
11-16 plan;
11-17 (D) evaluate whether the child's placement in
11-18 substitute care meets the child's needs and recommend other plans
11-19 or services to meet the child's special needs or circumstances;
11-20 (E) describe the permanency plan for the child
11-21 and recommend actions necessary to ensure that a final order
11-22 consistent with that permanency plan is rendered before the date
11-23 for dismissal of the suit under this chapter; and
11-24 (F) [(2) recommend one of the following actions:]
11-25 [(A) that the child be returned to the child's
12-1 home and that the suit be dismissed;]
12-2 [(B) that the child be returned to the child's
12-3 home with the department or other agency retaining conservatorship;]
12-4 [(C) that the child remain in substitute care
12-5 for a specified period and that the child's parents continue to
12-6 work toward providing the child with a safe environment;]
12-7 [(D) that the child remain in substitute care
12-8 for a specified period and that termination of parental rights be
12-9 sought under this code;]
12-10 [(E) that a child who has resided in substitute
12-11 care for at least 18 months be placed or remain in permanent or
12-12 long-term substitute care because of the child's special needs or
12-13 circumstances; or]
12-14 [(F) that other plans be made or other services
12-15 provided in accordance with the child's special needs or
12-16 circumstances; and]
12-17 [(3)] with respect to a child 16 years of age or
12-18 older, identify the services needed to assist the child in the
12-19 transition to adult life.
12-20 (c) A parent whose parental rights are the subject of a suit
12-21 affecting the parent-child relationship, the attorney for that
12-22 parent, or the child's attorney ad litem or guardian ad litem may
12-23 file a response to the department's or other agency's report filed
12-24 under Subsection (b). A response must be filed not later than the
12-25 third day before the date of the hearing.
13-1 SECTION 10. Section 263.304, Family Code, is amended to read
13-2 as follows:
13-3 Sec. 263.304. INITIAL PERMANENCY [REVIEW] HEARING; TIME.
13-4 Not later than the 180th day after the date the court renders a
13-5 temporary order appointing the department as temporary managing
13-6 conservator of a child [of the conclusion of the full adversary
13-7 hearing under Chapter 262], the court shall hold a permanency
13-8 hearing to review the status of, and permanency plan for, the [a]
13-9 child to ensure that a final order consistent with that permanency
13-10 plan is rendered before the date for dismissal of the suit under
13-11 this chapter [in substitute care in the court's jurisdiction,
13-12 including the time for the completion of the plan and the projected
13-13 date for the achievement of the child's permanency plan].
13-14 SECTION 11. Section 263.305, Family Code, is amended to read
13-15 as follows:
13-16 Sec. 263.305. SUBSEQUENT PERMANENCY [REVIEW] HEARINGS. A
13-17 subsequent permanency hearing before entry of a final order
13-18 [Subsequent review hearings] shall be held [not earlier than 5 1/2
13-19 months and] not later than the 120th day [seven months] after the
13-20 date of the last permanency hearing in the suit. For [unless,
13-21 for] good cause shown or on the court's own motion [by a party],
13-22 the court may order more frequent hearings [an earlier hearing is
13-23 approved by the court].
13-24 SECTION 12. Section 263.306, Family Code, is amended to read
13-25 as follows:
14-1 Sec. 263.306. PERMANENCY [REVIEW] HEARINGS: PROCEDURE. At
14-2 each permanency [review] hearing the court shall [determine]:
14-3 (1) identify [the identity of] all persons or parties
14-4 present at the hearing or those given notice but failing to appear;
14-5 (2) review the efforts of the department or another
14-6 agency in:
14-7 (A) attempting to locate all necessary persons;
14-8 (B) requesting service of citation; and
14-9 (C) obtaining the assistance of a parent in
14-10 providing information necessary to locate an absent parent;
14-11 (3) return the child to the parent or parents if
14-12 [whether] the child's parent or parents are willing and able to
14-13 provide the child with a safe environment and the return of the
14-14 child is in the child's best interest;
14-15 (4) return the child to a person or entity, other than
14-16 a parent, entitled to service under Chapter 102 if the person or
14-17 entity is willing and able to provide the child with a safe
14-18 environment and the return of the child is in the child's best
14-19 interest;
14-20 (5) evaluate the department's efforts to identify
14-21 relatives who could provide the child with a safe environment, if
14-22 the child is not returned to a parent or another person or entity
14-23 entitled to service under Chapter 102;
14-24 (6) evaluate the parties' compliance with temporary
14-25 orders and
15-1 [(3) the extent to which the child's parents have
15-2 taken the necessary actions or responsibilities toward achieving
15-3 the plan goal during the period of the service plan and the extent
15-4 to which the department or other authorized agency has provided
15-5 assistance to the parents as provided in] the service plan;
15-6 (7) determine [(4)] whether:
15-7 (A) the child continues to need substitute care;
15-8 (B) [and whether] the child's current placement
15-9 is appropriate for meeting the child's needs; and
15-10 (C) other plans or services are needed to meet
15-11 the child's special needs or circumstances;
15-12 (8) if the child is placed in institutional care,
15-13 determine whether efforts have been made to ensure placement of the
15-14 child in the least restrictive environment consistent with the best
15-15 interest and special needs of the child;
15-16 (9) if the child is 16 years of age or older, order
15-17 services that are needed to assist the child in making the
15-18 transition from substitute care to independent living if the
15-19 services are available in the community;
15-20 (10) determine plans, services, and further temporary
15-21 orders necessary to ensure that a final order is rendered before
15-22 the date for dismissal of the suit under this chapter; and
15-23 (11) determine the date for dismissal of the suit
15-24 under this chapter and give notice in open court to all parties of:
15-25 (A) the dismissal date;
16-1 (B) the date of the next permanency hearing; and
16-2 (C) the date the suit is set for trial.
16-3 [(5) a date for achieving the child's permanency plan;]
16-4 [(6) if the child has been in substitute care for not
16-5 less than 18 months, the future status of the child and the
16-6 appropriateness of the date by which the child may return home and
16-7 whether to render further appropriate orders;]
16-8 [(7) if the child is in substitute care outside the
16-9 state, whether the out-of-state placement continues to be
16-10 appropriate and in the best interest of the child;]
16-11 [(8) whether the child's parents are willing and able
16-12 to provide the child with a safe environment without the assistance
16-13 of a service plan and, if so, return the child to the parents;]
16-14 [(9) whether the child's parents are willing and able
16-15 to provide the child with a safe environment with the assistance of
16-16 a service plan and, if so, return the child or continue the
16-17 placement of the child in the child's home under the department's
16-18 or other agency's supervision;]
16-19 [(10) whether the child's parents are presently
16-20 unwilling or unable to provide the child with a safe environment,
16-21 even with the assistance of a service plan, and, if so, order the
16-22 child to remain under the department's or other agency's managing
16-23 conservatorship for a period of time specified by the court;]
16-24 [(11) whether a long-term substitute care placement is
16-25 in the child's best interest because of the child's special needs
17-1 or circumstances and, if so, begin a long-term substitute care
17-2 placement and if the child is placed in institutional care, whether
17-3 efforts have been made to ensure placement of the child in the
17-4 least restrictive environment consistent with the best interest and
17-5 special needs of the child;]
17-6 [(12) whether a child is 16 years of age or older and,
17-7 if so, order the services that are needed to assist the child in
17-8 making the transition from substitute care to independent living if
17-9 the services are available in the community;]
17-10 [(13) whether the child has been placed with the
17-11 department under a voluntary placement agreement and, if so, order
17-12 that the department will institute further proceedings or return
17-13 the child to the parents;]
17-14 [(14) whether the department or authorized agency has
17-15 custody, care, and control of the child under an affidavit of
17-16 relinquishment of parental rights naming the department managing
17-17 conservator and, if so, direct the department or authorized agency
17-18 to institute further proceedings; and]
17-19 [(15) whether parental rights to the child have been
17-20 terminated and, if so, determine whether the department or
17-21 authorized agency will attempt to place the child for adoption.]
17-22 SECTION 13. Section 264.009, Family Code, is amended to read
17-23 as follows:
17-24 Sec. 264.009. LEGAL REPRESENTATION OF DEPARTMENT. (a) In
17-25 [Except as provided by Subsection (b), in] any action under this
18-1 code [title], the department shall be represented in court by
18-2 [the]:
18-3 (1) the county [prosecuting] attorney [who represents
18-4 the state in criminal cases in the district or county court] of the
18-5 county where the action is brought, unless the district attorney or
18-6 criminal district attorney elects to provide representation; or
18-7 (2) if the case is one in which a conflict of interest
18-8 or special circumstances exist, an attorney employed by the
18-9 department or who has contracted with the department under
18-10 Subsection (c) to provide representation [attorney general].
18-11 (b) In a county with a population of 2,800,000 or more, in
18-12 an action under this code [title], the department shall be
18-13 represented in court by [the]:
18-14 (1) the attorney who represents the state in civil
18-15 cases in the district or county court of the county where the
18-16 action is brought; or
18-17 (2) if the case is one in which a conflict of interest
18-18 or special circumstances exists, an attorney employed by the
18-19 department or who has contracted with the department under
18-20 Subsection (c) to provide representation [attorney general].
18-21 (c) The department may contract with a county attorney, a
18-22 district attorney, a criminal district attorney, the attorney
18-23 general, or a private attorney to provide reimbursement from any
18-24 available state or federal funds of the costs of representing the
18-25 department in an action under this code.
19-1 SECTION 14. Sections 263.308 and 263.309, Family Code, are
19-2 repealed.
19-3 SECTION 15. (a) This Act takes effect January 1, 1998.
19-4 (b) Except as provided by Subsection (c) of this section,
19-5 this Act applies to a pending suit affecting the parent-child
19-6 relationship regardless of whether the suit was commenced before,
19-7 on, or after the effective date of this Act.
19-8 (c) If the Department of Protective and Regulatory Services
19-9 has been appointed temporary managing conservator of a child before
19-10 the effective date of this Act, the court shall establish a date
19-11 for dismissal of the suit not later than the second anniversary of
19-12 the date of the next hearing conducted under Chapter 263, Family
19-13 Code, unless the court has rendered a final order before the
19-14 dismissal date.
19-15 SECTION 16. The importance of this legislation and the
19-16 crowded condition of the calendars in both houses create an
19-17 emergency and an imperative public necessity that the
19-18 constitutional rule requiring bills to be read on three several
19-19 days in each house be suspended, and this rule is hereby suspended.