HBA-SEB C.S.H.B. 2355 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 2355 By: Goodman Juvenile Justice and Family Issues 4/1/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Due to changes in state law made by the 75th Texas Legislature and the passage of the federal Adoption and Safe Families Act of 1997, statutes concerning issues such as information sharing, investigations, and case processing relating to the adoption, protection, and placement of children may need to be amended in order to provide more uniformity in their application. C.S.H.B. 2355 modifies those laws in many ways, including reconciling duplicate subsections, clarifying the relationship between the Department of Protective and Regulatory Services and the Bureau of Vital Statistics, and establishing priorities with respect to the removal of a child from the child's 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 Section 107.051(c), Family Code, to delete text requiring a court to appoint a private agency or person to conduct a social study into a child's circumstances if the Department of Protective and Regulatory Services (DPRS) has no interest in a suit involving an adoption or possession of or access to a child. SECTION 2. Amends Section 108.001(c), Family Code, to provide that all records required under this section (Transmittal of Records of Suit by Clerk) to be maintained by the bureau of vital statistics (bureau) are confidential except as otherwise provided by law. Deletes existing text requiring good cause for access to the records. Makes conforming changes. SECTION 3. Amends Section 108.003, Family Code, to require that the name and address of each parent, guardian, managing conservator, or other person whose consent to adoption was waived or required under Chapter 162 (Adoption), rather than Chapter 159 (Uniform Interstate Family Support Act), or whose parental rights were terminated in the adoption suit be included on a certified report sent by the clerk of the court to the bureau. Makes a conforming change. SECTION 4. Amends Section 108.005, Family Code, to require the bureau to close the record showing that the continuing, exclusive jurisdiction of a child has been lost due to the adoption of the child. Makes conforming and nonsubstantive changes. SECTION 5. Amends Chapter 108, Family Code, by adding Section 108.110, as follows: Sec. 108.110. RELEASE OF INFORMATION BY BUREAU OF VITAL STATISTICS. Requires the bureau to provide to DPRS adoption information as necessary for DPRS to comply with federal law or regulations regarding the compilation or reporting of adoption information to federal officials and to provide other information as necessary for DPRS to administer its duties. Authorizes the bureau to release otherwise confidential information from the bureau's central record files to another governmental entity that has a specific need for the information and maintains appropriate safeguards to prevent further dissemination of the information. SECTION 6. Amends Section 155.204, Family Code, to provide that except as provided by Section 262.203 (Transfer of Suit), a motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed. Authorizes a party to file a transfer order with the clerk of continuing, exclusive jurisdiction if a transfer order has been rendered exercising jurisdiction under Chapter 262 (Emergency Procedures in Suit by Governmental Entity). Requires the clerk of the court of continuing, exclusive jurisdiction to transfer the files as provided by this subchapter (Transfer of Continuing, Exclusive Jurisdiction) on receipt and without a hearing. SECTION 7. Reenacts Sections 161.211(a) and (b), Family Code, as amended by Section 1, Chapter 600, Acts of the 75th Legislature, Regular Session, 1997, and Section 2, Chapter 601, Acts of the 75th Legislature, Regular Session, 1997. Sections 161.211(a) and (b) relate to the validity of an order terminating parental rights not being subject to collateral or direct attack after the sixth month after the date the order was signed. SECTION 8. Amends Sections 162.005(e) and (f), Family Code, as follows: (e) Provides that unless the identity of the birth parents and their families is already known to the adoptive parents or is readily available through other sources, including the court records of a suit to terminate the parent-child relationship, a copy of a report of the child's available history is required to be edited to protect those identities from the adoptive parents. (f) Provides that when the bureau receives supplemental medical, psychological, or psychiatric information about a child placed for adoption in a child-placing agency, the bureau is required to file the information with the original report and to furnish the information to the adoptive parents. Authorizes the bureau, with or without request, to provide the supplemental information to persons entitled to examine adoption records if the adoptive parents are deceased. SECTION 9. Amends Sections 162.006(a), (b), and (e), Family Code, to make conforming and nonsubstantive changes. SECTION 10. Amends Section 162.008(b), Family Code, to make conforming changes. SECTION 11. Amends Sections 162.018(a), (b), and (c), Family Code, to make conforming and nonsubstantive changes. SECTION 12. Amends Section 162.304(e), Family Code, to authorize the state to pay an adoption subsidy if a child is eligible for the subsidy, regardless of whether the state is the managing conservator of the child. Makes a conforming change. SECTION 13. Amends Section 261.101(d), Family Code, to provide that unless waived in writing by the person making a report of child abuse or neglect, the identity of the individual may be disclosed only as provided by Section 261.201 (Confidentiality and Disclosure of Information) or to a law enforcement officer. SECTION 14. Amends Section 261.201, Family Code, by amending Subsections (b)-(d) and adding Subsection (h), as follows: (b) Provides that a court must consider the life and safety of any person who provides care for the child when determining whether to disclose information that is confidential under this section. (c) Makes a conforming change. (d) Makes a conforming change. (e) Makes a conforming change. (h) Provides that this section does not apply to an investigation of child abuse or neglect in a home or facility regulated under Chapter 42, Human Resources Code (Regulation of Certain Facilities, Homes, and Agencies that Provide Child-Care Services). SECTION 15. Amends Section 261.301(b), Family Code, to require the DPRS to perform an investigation of a facility operated, licensed, certified, registered, or listed by DPRS as required by Subchapter E (Investigation of Abuse or Neglect in Certain Facilities) and the Human Resources Code. SECTION 16. Amends Section 261.303, Family Code, by amending Subsection (c) and adding Subsection (d), as follows: (c) Requires a court having family law jurisdiction to order records to be released or an examination to be made at the times and places designated by the court if a parent or person responsible for the child's care does not consent to release of the child's prior medical, psychological, or psychiatric records or to a medical, psychological, or psychiatric examination of the child that is requested by DPRS or a designated agency. (d) Requires a person, including a medical facility, to release to DPRS or a designated agency, as part of the required reports under Section 261.103 (Report Made to Appropriate Agency), records that directly relate to the suspected abuse or neglect without requiring parental consent or a court order if the person makes a report under Subchapter B (Report of Abuse or Neglect; Immunities). SECTION 17. Amends Sections 261.305(a)-(c), Family Code, to require a court to appoint an attorney to represent an indigent parent or person at a hearing. Requires the fees for the appointed attorney to be paid as provided by Chapter 107 (Special Appointments and Social Studies), rather than by DPRS or a designated agency. Makes conforming and nonsubstantive changes. SECTION 18. Reenacts Section 261.405, Family Code, as amended by Chapters 162 and 1374, Acts of the 75th Legislature, Regular Session, 1997. Section 261.405 pertains to investigations in preadjudication and post-adjudication secure juvenile facilities. SECTION 19. Amends Section 261.406(b), Family Code, to require DPRS to send a written report of a child abuse or neglect investigation by DPRS, as appropriate, to the Texas Education Agency, the agency responsible for teacher certification, the local school board or the school's, rather than the local, governing body, and the school principal or director, unless the principal or director is alleged to have committed the abuse or neglect, for appropriate action. Makes a conforming change. SECTION 20. Amends the heading of Chapter 262, Family Code, as follows: CHAPTER 262. New title: PROCEDURES IN SUIT BY GOVERNMENTAL ENTITY TO PROTECT HEALTH AND SAFETY OF CHILD SECTION 21. Amends Section 262.001, Family Code, to authorize a governmental entity with interest in a child to file a suit affecting the parent-child relationship requesting an order, rather than an emergency order, to take possession of the child. Provides that a child's health and safety is the paramount concern in determining the reasonable efforts that are required to be made with respect to preventing or eliminating the need to remove the child from the child's home or to make it possible to return the child to the child's home. SECTION 22. Amends Section 262.002, Family Code, as follows: Sec. 262.002. New title: JURISDICTION. Makes a conforming change. SECTION 23. Amends Section 262.007(c), Family Code, to decrease from 14 to five the number of days for which DPRS may retain possession of a child without a court order after the child is delivered to DPRS. Makes a conforming change. SECTION 24. Amends the heading of Subchapter B, Chapter 262, as follows: SUBCHAPTER B. New title: TAKING POSSESSION OF CHILD SECTION 25. Amends Section 262.101, Family Code, to provide that an original suit, rather than a petition or affidavit, filed by a governmental entity that requests permission to take possession of a child without prior notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge stating sufficient facts regarding the danger a child faces and the time constraints for protecting the child. Makes conforming changes. SECTION 26. Amends Section 262.102(a), Family Code, to make conforming changes. SECTION 27. Amends Section 262.106, Family Code, by adding Subsection (d), as follows: (d) Provides that for the purpose of determining the first working day after the date a child is taken into possession, the child is considered to have been taken into possession by DPRS on the expiration of the five-day period permitted under Section 262.007(c) or 262.110(b) (regarding possessing a child in an emergency with the intent to return home), as appropriate. SECTION 28. Amends Section 262.109(d), Family Code, to authorize written notice of taking possession of a child by DPRS or other agency to be waived by the court at the initial hearing on a showing that the parents, conservators, or other custodians of the child could not be located or for other good cause. SECTION 29. Amends Section 262.110, Family Code, to authorize DPRS to retain possession of a child for not more than five days until a parent or other person entitled to possession of a child takes possession of the child. Requires DPRS to take action as though the department took possession of the child in an emergency without a court order on the expiration of the fifth day if a person entitled to possession of the child does not take possession of the child. Authorizes DPRS to place a child in foster care if the department retains possession of the child on expiration of the fifth day. SECTION 30. Amends Subchapter B, Chapter 262, Family Code, by adding Section 262.113, as follows: Sec. 262.113. FILING SUIT WITHOUT TAKING POSSESSION OF CHILD. Provides that an original suit filed by a governmental entity that requests to take possession of a child after notice and a hearing must be supported by an affidavit. Establishes that the affidavit must be sworn to by a person with personal knowledge and must state 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 that allowing the child to remain in the home would be contrary to the child's welfare. SECTION 31. Amends Section 262.201, Family Code, by adding Subsection (g), to make a conforming change. SECTION 32. Amends Section 262.2015, Family Code, as follows: Sec. 262.2015. New title: AGGRAVATED CIRCUMSTANCES. (a) Authorizes a court to waive the requirement of a service plan and the requirement to make reasonable efforts to return the child. Authorizes the court to accelerate the trial schedule. Makes those authorizations applicable if the court finds that all reasonable efforts have been made to return the child to a parent or that the parent has subjected the child to aggravated circumstances. (b) Authorizes a court to find that a parent has subjected a child to aggravated circumstances if the parent abandoned the child without a means of identifying the child, if the child is a victim of serious bodily injury or sexual abuse inflicted by the parent or by another person with the parent's consent, or the parent has engaged in conduct against the child or against another child of the parent that would constitute an offense under specific sections of the Penal Code, including murder, capital murder, and manslaughter. Authorizes the court to find that a parent has subjected the child to aggravated circumstances if the parent voluntarily left the child alone or in the possession of another person who is not the parent for at least six months without expressing an intent to return and without leaving adequate child support or if the parent's parental rights have been involuntarily terminated with regard to another child. (c) Requires a court to conduct an initial permanency hearing within a specific time frame on finding that reasonable efforts to prevent or eliminate the need to remove a child or to make it possible for the child to safely return are not required. Authorizes, but does not require, separate notice of the permanency plan to be given with a notice of a hearing. (d) Requires DPRS to make reasonable efforts to finalize a child's permanent placement. Requires the court to set the suit for trial on specific merits in order to facilitate final placement of a child. SECTION 33. Amends Section 262.203, Family Code, to require a court that rendered a temporary order to transfer a suit on a motion of a party or the court's own motion to the court of continuing, exclusive jurisdiction, if any, or to order a transfer of the suit if grounds exist for mandatory transfer from the court of continuing, exclusive jurisdiction or if grounds exist for transfer based on improper venue. Authorizes a motion to transfer a suit to be filed separately from the petition, notwithstanding Section 155.204 (Procedure for Transfer). Provides that the motion is timely if filed while the case is pending. Establishes that a court is not required to transfer the suit to a court in which a parent has filed for dissolution of marriage before a final order for the protection of the child has been rendered. SECTION 34. Amends Subchapter C, Chapter 262, Family Code, by adding Section 262.205, as follows: Sec 262.205. HEARING WHEN CHILD NOT IN POSSESSION OF GOVERNMENTAL ENTITY. (a) Authorizes a court to render a temporary restraining order in a suit requesting possession of a child after notice and hearing. Requires the suit to be promptly set for hearing. (b) Authorizes the court to grant the request to remove the child from the person entitled to possession of the child after the hearing if the court finds sufficient evidence that reasonable efforts have been made to prevent the need to remove the child and allowing the child to remain in the home would be contrary to the child's welfare. (c) Requires the court to issue an appropriate temporary order under Chapter 105 (Settings, Hearings, and Orders) and inform each parent in open court that parental and custodial rights may be subject to restriction or termination unless the parent is willing and able to provide a safe home for the child if the court orders the removal of the child. (d) Authorizes the court to render a temporary order without regard to whether notice of the citation if the location of the parent or alleged father is unknown. (e) Requires the court to place a removed child with the child's noncustodial parent or another relative of the child if placement with the noncustodial parent is inappropriate, unless it is not in the child's best interest. (f) Requires the court to render a protective order if the court finds that the child requires protection from family violence. SECTION 35. Amends Section 263.101, Family Code, to require DPRS or other agency appointed as a child's managing conservator to file a service plan before the 46th day after the court renders a temporary order appointing DPRS as temporary managing conservator. SECTION 36. Amends Section 263.105(a), Family Code, to delete existing text requiring the service plan to be filed with the next required status report. SECTION 37. Amends Section 263.201, Family Code, to provide that a status hearing is not required if the court holds an initial permanency hearing before the date a status hearing is required. Makes a conforming change. SECTION 38. Amends Section 263.202, Family Code, by adding Subsection (d) to require a court to consider whether to waive the service plan with respect to a parent if it has not been filed with the court. SECTION 39. Amends Section 263.306, Family Code, to require a court to review a service plan, permanency report, and other information submitted at a permanency hearing to determine the safety of a child, the continuing necessity and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress that has been made toward alleviating or mitigating the causes necessitating the placement of the child in foster care. Requires the court to review the information to project a likely date by which the child may be returned to and safely maintained in the child's home, placed for adoption, or placed in permanent managing conservatorship. Makes a nonsubstantive change. SECTION 40. Amends Section 263.402, Family Code, as follows: Sec. 263.402. New title: MONITORED RETURN OF CHILD TO PARENT. Deletes existing text authorizing a court to retain jurisdiction and not dismiss the suit or render a final order if the court renders a temporary order that orders DPRS to place a child with a relative of the child. SECTION 41. Amends Section 264.201, Family Code, by adding Subsection (e) to prohibit DPRS from providing and a court from ordering DPRS to provide supervision for visitation in a child custody matter unless DPRS is a petitioner or intervener in the underlying suit. SECTION 42. Amends Section 154.053, Civil Practice and Remedies Code, by adding Subsection (d) to provide that each participant, including an impartial third party, to an alternative dispute resolution procedure is subject to the requirements of Subchapter B, Chapter 261, Family Code, and Subchapter C, Chapter 48, Human Resources Code (Department Investigation of Reports of Suspected Abuse, Exploitation, or Neglect). SECTION 43. Amends Section 154.073, Civil Practice and Remedies Code, to provide that this section (Confidentiality of Communications in Dispute Resolution Procedures) does not affect the duty to report abuse or neglect under Subchapter B, Chapter 261, Family Code, and abuse, exploitation, or neglect under Subchapter C, Chapter 48, Human Resources Code. SECTION 44. Repealers: Sections 263.003 (Voluntary Placements; Suit) and 263.004 (When Child is at Home), Family Code. SECTION 45. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 46. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute modifies the original in SECTION 12 by amending Section 162.304, Family Code, to delete proposed Subsection (f) which would have authorized an adoption assistance agreement to provide for adoption subsidy payments to continue after a child's 18th birthday if the child continues to be eligible for the subsidy under federal law. The substitute modifies the original in SECTION 34 by deleting proposed Section 262.205, Family Code, and redesignating proposed Section 262.206 to 262.205. The original, now deleted, proposed Section 262.205 would have authorized a party to a suit to cause a nonstenographic oral deposition to be taken, transcribed, and used as provided by the Texas Rules of Civil Procedure, notwithstanding Chapter 52, Government Code (Court Reporters). It would have also authorized a nonstenographic oral deposition to be taken before an officer authorized by law to take depositions.