HBA-SEB C.S.H.B. 228 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 228
By: West, George
Juvenile Justice & Family Issues
4/28/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Current law provides certain government agents with methods of intervention
in situations where child abuse is deemed to have occurred.  These methods
include issuing restraining orders against the alleged perpetrator,
temporarily removing the child from the allegedly abusive situation, and
taking possession of the child.  Nevertheless, statistics show that child
abuse continues to be a problem in Texas, in some instances even after the
Department of Protective and Regulatory Services has become involved.   

C.S.H.B. 228 prohibits a court from returning a child to the child's
guardian's home if a person living in or frequently visiting the residence
is found to have abused the child.  If a child is returned home this bill
authorizes a court to render an order that provides for child and family
services and monitoring by DPRS, prohibits a person that a physically or
sexually abused a child from residing in or visiting the child's residence,
or requires any other action to reduce the risk of abuse or neglect. It
also requires the court to review a child's circumstances at least every
six months if the child has been returned home.   

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 262, Family Code, by adding Subchapter D, as
follows: 

SUBCHAPTER D.  PROTECTION OF CHILD FROM ABUSER

Sec. 262.301.  PROHIBITION ON RETURN OF CHILD.  Prohibits a court from
returning a child to the child's parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian (guardian) entitled to
possession if the court finds sufficient evidence to satisfy a person of
ordinary prudence and caution that a person residing or frequently visiting
the child's home has abused the child, except as provided by this
subchapter. 

Sec. 262.302.  RETURN OF CHILD TO RESIDENCE.  Authorizes a court to return
a child to the child's guardian if the court finds that the child is not in
danger from abuse from a parent or other adult who resides in or frequently
visits the child's residence.  Authorizes the return of the child if the
child may be protected from further abuse by prohibiting the person that
has abused a child from residing in or visiting the child's residence and
by providing child and family services.   

Sec. 262.303.  INFORMATION THE COURT MAY CONSIDER.  Authorizes a court to
consider information prepared by the Department of Protective and
Regulatory Services (DPRS) in deciding whether to return a child.  Provides
that the information includes a risk assessment, investigation information,
and reports of physical or mental examinations. 

Sec. 262.304.  COURT ORDER TO PROTECT CHILD.  Authorizes a court to render
an order that provides for child and family services and monitoring by
DPRS, prohibits a person  that a physically or sexually abused a child from
residing in or visiting the child's residence, or requires any other action
to reduce the risk of abuse or neglect after the child is returned home.
Provides that an order for time-limited family support services and
monitoring by DPRS is effective for a period stated in the order, not to
exceed 12 months. 

Sec. 262.305.  SERVICE OF ORDER.  Requires a copy of a court order to be
served on or delivered in open court to the person with whom the child will
continue to reside and the person prohibited from residing in or visiting
the home.   

Sec. 262.306.  CRIMINAL PENALTY.  Provides that a person commits a Class A
misdemeanor if the person, in violation of a court order, attempts to
reside in or visit the child's residence.  Establishes that the offense is
a third degree felony if it is shown on the trial that the defendant has
previously been convicted of such a violation.  Provides that a person
commits a Class A misdemeanor if the person fails to report to DPRS and an
appropriate law enforcement agency an attempt by another person to reside
in or visit the child's residence in violation of a court order.
Establishes that the person commits a third degree felony if it is shown on
trial that the defendant has previously been convicted of such a violation. 

Sec. 262.307.  REVIEW OF CHILD PLACEMENT.  Requires a court to conduct a
review of the circumstances of a returned child at least once every six
months.  Requires the court to inform each parent at each review that
parental and custodial rights and duties may be subject to restriction or
termination unless the parent is willing and able to provide a safe
environment for the child.  Authorizes the court to dismiss the suit or
render final order at any time on finding that the child's health and
safety will be adequately protected.   

Sec. 262.308.  REMOVAL OF CHILD AFTER RETURN HOME.  Authorizes DPRS, prior
to the expiration of an order, to again remove a child upon filing with a
court an affidavit sworn to by a person with personal knowledge and stating
facts sufficient to satisfy a person of ordinary prudence and caution that
reasonable efforts have been made to prevent or eliminate the need to
remove the child from the child's home and allowing the child to remain in
the home would be contrary to the child's welfare.  Requires notice of
removal to be given to the parent or caretaker.  Requires the court to
review the removal.  

SECTION 2.  Effective date:  September 1, 1999.  
            Makes the application of this Act prospective.

SECTION 3.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute makes a conforming change in the caption.

The substitute modifies the original in SECTION 1 by amending Chapter 262,
Family Code, by adding Subchapter D.  Subchapter D sets forth standards for
removing a child from a residence, returning the child to the residence,
and providing penalties for violation of certain court orders. The
substitute removes proposed Section 262.2012, which would have been added
to Subchapter C, Chapter 262, Family Code, to provide guidelines for
removing a child from a residence if an abuser lived in the same residence
as the child.  The substitute expands this theme by establishing such
regulations for an abuser who lives in the child's residence or frequently
visits the residence. For a more in-depth analysis, please see the
Section-by-Section Analysis portion of this document.  

The substitute modifies the original in SECTION 2 to make a conforming
change.