1-1 By: Goodman, et al. (Senate Sponsor - Harris) H.B. No. 1622
1-2 (In the Senate - Received from the House April 19, 1999;
1-3 April 20, 1999, read first time and referred to Committee on
1-4 Jurisprudence; May 5, 1999, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 4, Nays 0;
1-6 May 5, 1999, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 1622 By: Harris
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the parent-child relationship and to suits affecting
1-11 the parent-child relationship.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 102.003, Family Code, is amended to read
1-14 as follows:
1-15 Sec. 102.003. GENERAL STANDING TO FILE SUIT. (a) An
1-16 original suit may be filed at any time by:
1-17 (1) a parent of the child;
1-18 (2) the child through a representative authorized by
1-19 the court;
1-20 (3) a custodian or person having the right of
1-21 visitation with or access to the child appointed by an order of a
1-22 court of another state or country;
1-23 (4) a guardian of the person or of the estate of the
1-24 child;
1-25 (5) a governmental entity;
1-26 (6) an authorized agency;
1-27 (7) a licensed child placing agency;
1-28 (8) a man alleging himself to be the biological father
1-29 of a child filing in accordance with Chapter 160, subject to the
1-30 limitations of Section 160.101, but not otherwise;
1-31 (9) a person, other than a foster parent, who has had
1-32 actual care, control, and possession of the child for at least [not
1-33 less than] six months ending not more than 90 days preceding the
1-34 date of the filing of the petition;
1-35 (10) a person designated as the managing conservator
1-36 in a revoked or unrevoked affidavit of relinquishment under Chapter
1-37 161 or to whom consent to adoption has been given in writing under
1-38 Chapter 162;
1-39 (11) a person with whom the child and the child's
1-40 guardian, managing conservator, or parent have resided for at least
1-41 [not less than] six months ending not more than 90 days preceding
1-42 the date of the filing of the petition if the child's guardian,
1-43 managing conservator, or parent is deceased at the time of the
1-44 filing of the petition; or
1-45 (12) a person who is the foster parent of a child
1-46 placed by the Department of Protective and Regulatory Services in
1-47 the person's home for at least 12 [a period of not less than 18]
1-48 months ending not more than 90 days preceding the date of the
1-49 filing of the petition.
1-50 (b) In computing the time necessary for standing under
1-51 Subsections (a)(9), (11), and (12), the court may not require that
1-52 the time be continuous and uninterrupted but shall consider the
1-53 child's principal residence during the relevant time preceding the
1-54 date of commencement of the suit.
1-55 SECTION 2. Sections 105.001(b) and (d), Family Code, are
1-56 amended to read as follows:
1-57 (b) Except as provided by Subsection (c), temporary
1-58 restraining orders and temporary injunctions under this section
1-59 shall be granted without the necessity of an affidavit or verified
1-60 pleading stating specific facts showing that immediate and
1-61 irreparable injury, loss, or damage will result before notice can
1-62 be served and a hearing can be held. Except as provided by
1-63 Subsection (h), an order may not be rendered under Subsection
1-64 (a)(1), (2), or (5) except after notice and a hearing. A temporary
2-1 restraining order or temporary injunction granted under this
2-2 section need not:
2-3 (1) define the injury or state why it is irreparable;
2-4 [or]
2-5 (2) state why the order was granted without notice; or
2-6 (3) include an order setting the cause for trial on
2-7 the merits with respect to the ultimate relief requested.
2-8 (d) In a suit, the court may dispense with the necessity
2-9 of[:]
2-10 [(1)] a bond in connection with temporary orders on
2-11 [in] behalf of the child[; and]
2-12 [(2) setting the cause for trial on the merits with
2-13 respect to the ultimate relief requested].
2-14 SECTION 3. Section 107.0135, Family Code, is amended to read
2-15 as follows:
2-16 Sec. 107.0135. APPOINTMENT OF ATTORNEY AD LITEM NOT
2-17 REQUIRED; CERTAIN CASES. A court is not required [under this
2-18 section] to appoint an attorney ad litem in a proceeding in which:
2-19 (1) a suit for the dissolution of a marriage is
2-20 uncontested; or
2-21 (2) the issues of possession of and access to a child
2-22 are agreed to by both parents.
2-23 SECTION 4. Section 107.014(a), Family Code, is amended to
2-24 read as follows:
2-25 (a) An attorney ad litem appointed under this subchapter to
2-26 represent a child:
2-27 (1) shall investigate to the extent the attorney ad
2-28 litem considers appropriate to determine the facts of the case;
2-29 (2) shall obtain and review copies of all of the
2-30 child's relevant medical, psychological, and school records; [and]
2-31 (3) may call, examine, or cross-examine witnesses; and
2-32 (4) shall become familiar with the American Bar
2-33 Association's standards of practice for lawyers who represent
2-34 children in abuse and neglect cases.
2-35 SECTION 5. Section 107.015, Family Code, is amended to read
2-36 as follows:
2-37 Sec. 107.015. ATTORNEY AD LITEM FEES. (a) An attorney
2-38 appointed to represent a child or parent as authorized by this
2-39 subchapter is entitled to [a] reasonable fees and expenses [fee] in
2-40 the amount set by the court to be paid by the parents of the child
2-41 unless the parents are indigent.
2-42 (b) If the court or associate judge determines that one or
2-43 more of the parties [or litigants] are able to defray the costs of
2-44 an attorney ad litem's fees and expenses [compensation] as
2-45 determined by the reasonable and customary fees for similar
2-46 services in the county of jurisdiction, the fees and expenses
2-47 [costs] may be ordered paid by one [either] or more of those [both]
2-48 parties, or the court or associate judge may order one [either] or
2-49 more of those [both] parties, prior to final hearing, to pay the
2-50 sums into the registry of the court or into an account authorized
2-51 by the court for the use and benefit of the attorney ad litem on
2-52 order of the court. The sums may be taxed as costs to be assessed
2-53 against one or more of the parties.
2-54 (c) If indigency of the parents is shown, an attorney
2-55 appointed to represent a child or parent in a suit to terminate the
2-56 parent-child relationship shall be paid from the general funds of
2-57 the county according to the fee schedule that applies to an
2-58 attorney appointed to represent a child in a suit under Title 3 as
2-59 provided by Chapter 51. The court may not award attorney ad litem
2-60 fees under this chapter against the state, a state agency, or a
2-61 political subdivision of the state except as provided by this
2-62 subsection.
2-63 SECTION 6. Section 107.051(c), Family Code, is amended to
2-64 read as follows:
2-65 (c) In a suit in which adoption is requested or possession
2-66 of or access to the child is an issue and in which the Department
2-67 of Protective and Regulatory Services is not a party [or has no
2-68 interest], the court shall appoint a private agency or person to
2-69 conduct the social study.
3-1 SECTION 7. Section 108.001(c), Family Code, is amended to
3-2 read as follows:
3-3 (c) Except as otherwise provided by law, [All] the records
3-4 required under this section to be maintained by the bureau of vital
3-5 statistics [and the records of a child-placing agency that has
3-6 ceased operations] are confidential [and no person is entitled to
3-7 access to or information from these records except for good cause
3-8 on an order of the court that rendered the order].
3-9 SECTION 8. Section 108.003, Family Code, is amended to read
3-10 as follows:
3-11 Sec. 108.003. TRANSMITTAL OF INFORMATION REGARDING ADOPTION.
3-12 (a) The clerk of a court that renders a decree of adoption shall,
3-13 not later than the 10th day of the first month after the month in
3-14 which the adoption is rendered, transmit to the central registry of
3-15 the bureau of vital statistics certified report of adoption that
3-16 includes:
3-17 (1) the name of the adopted child after adoption as
3-18 shown in the adoption order;
3-19 (2) the birth date of the adopted child;
3-20 (3) the docket number of the adoption suit;
3-21 (4) the identity of the court rendering the adoption;
3-22 (5) the date of the adoption order;
3-23 (6) the name and address of each parent, guardian,
3-24 managing conservator, or other person whose consent to adoption was
3-25 required or waived under Chapter 162 [159], or whose parental
3-26 rights were terminated in the adoption suit;
3-27 (7) the identity of the licensed child placing agency,
3-28 if any, through which the adopted child was placed for adoption;
3-29 and
3-30 (8) the identity, address, and telephone number of the
3-31 registry through which the adopted child may register as an
3-32 adoptee.
3-33 (b) Except as otherwise provided by law, for good cause
3-34 shown, or on an order of the court that granted the adoption or
3-35 terminated the proceedings under Section 155.001, the records
3-36 concerning a child maintained by the district clerk after rendition
3-37 of a decree of adoption, the records of a child-placing agency that
3-38 has ceased operations, and the records required under this section
3-39 to be maintained by the bureau of vital statistics are
3-40 confidential, and no person is entitled to access to or information
3-41 from these records.
3-42 SECTION 9. Section 108.005, Family Code, is amended to read
3-43 as follows:
3-44 Sec. 108.005. ADOPTION RECORDS RECEIVED BY BUREAU OF VITAL
3-45 STATISTICS. (a) When the bureau of vital statistics receives a
3-46 record [records] from the district clerk showing that continuing,
3-47 exclusive jurisdiction of a child has been lost due to the adoption
3-48 of the child, the bureau shall close the records concerning that
3-49 child.
3-50 (b) An [Except for statistical purposes, the bureau may not
3-51 disclose any information concerning the prior proceedings affecting
3-52 the child. Except as provided in Chapter 162, any subsequent]
3-53 inquiry concerning a [the] child who has been adopted shall be
3-54 handled as though the child had not [been] previously been the
3-55 subject of a suit affecting the parent-child relationship. [The
3-56 bureau shall provide to the Department of Protective and Regulatory
3-57 Services registry information as necessary for the department to
3-58 comply with federal law or regulations regarding the compilation or
3-59 reporting of adoption information to federal officials and other
3-60 information as necessary for the department to administer the
3-61 central registry as provided in Subchapter E, Chapter 162.]
3-62 [(b) On the receipt of additional records concerning a child
3-63 who has been the subject of a suit affecting the parent-child
3-64 relationship in which the records have been closed, a new file
3-65 shall be made and maintained.]
3-66 SECTION 10. Chapter 108, Family Code, is amended by adding
3-67 Section 108.110 to read as follows:
3-68 Sec. 108.110. RELEASE OF INFORMATION BY BUREAU OF VITAL
3-69 STATISTICS. (a) The bureau of vital statistics shall provide to
4-1 the Department of Protective and Regulatory Services:
4-2 (1) adoption information as necessary for the
4-3 department to comply with federal law or regulations regarding the
4-4 compilation or reporting of adoption information to federal
4-5 officials; and
4-6 (2) other information as necessary for the department
4-7 to administer its duties.
4-8 (b) The bureau may release otherwise confidential
4-9 information from the bureau's central record files to another
4-10 governmental entity that has a specific need for the information
4-11 and maintains appropriate safeguards to prevent further
4-12 dissemination of the information.
4-13 SECTION 11. Section 153.434, Family Code, is amended to read
4-14 as follows:
4-15 Sec. 153.434. LIMITATION ON RIGHT TO REQUEST ACCESS. A
4-16 biological or adoptive grandparent may not request possession of or
4-17 access to a grandchild if:
4-18 (1) each of the biological parents of the grandchild
4-19 has:
4-20 (A) died;
4-21 (B) had the person's parental rights terminated;
4-22 or
4-23 (C) [the grandparent is a parent of a person
4-24 whose parental rights with the child have been terminated by court
4-25 order or by death; or]
4-26 [(2) the grandparent is a parent of a person who has]
4-27 executed an affidavit of waiver of interest in child or an
4-28 affidavit of relinquishment of parental rights under Chapter 161
4-29 and the affidavit designates an authorized agency, licensed
4-30 child-placing agency, or person other than the child's stepparent
4-31 as the managing conservator of the child; and
4-32 (2) [(3) the other biological parent has died, has
4-33 executed an affidavit of waiver of interest in child or an
4-34 affidavit of relinquishment of parental rights under Chapter 161,
4-35 or has had that parent's parental rights terminated and] the
4-36 grandchild has been adopted, or is the subject of a pending suit
4-37 for adoption, by a person other than the child's stepparent.
4-38 SECTION 12. Section 155.204, Family Code, is amended by
4-39 amending Subsection (a) and adding Subsection (f) to read as
4-40 follows:
4-41 (a) Except as provided by Section 262.203, a [A] motion to
4-42 transfer by a petitioner or movant is timely if it is made at the
4-43 time the initial pleadings are filed. A motion to transfer by
4-44 another party is timely if it is made on or before the first Monday
4-45 after the 20th day after the date of service of citation or notice
4-46 of the suit or before the commencement of the hearing, whichever is
4-47 sooner. If a timely motion to transfer has been filed and no
4-48 controverting affidavit is filed within the period allowed for its
4-49 filing, the proceeding shall be transferred promptly without a
4-50 hearing to the proper court.
4-51 (f) If a transfer order has been rendered by a court
4-52 exercising jurisdiction under Chapter 262, a party may file the
4-53 transfer order with the clerk of the court of continuing, exclusive
4-54 jurisdiction. On receipt and without a hearing, the clerk of the
4-55 court of continuing, exclusive jurisdiction shall transfer the
4-56 files as provided by this subchapter.
4-57 SECTION 13. Section 161.001, Family Code, is amended to read
4-58 as follows:
4-59 Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD
4-60 RELATIONSHIP. The court may order termination of the parent-child
4-61 relationship if the court finds by clear and convincing evidence:
4-62 (1) that the parent has:
4-63 (A) voluntarily left the child alone or in the
4-64 possession of another not the parent and expressed an intent not to
4-65 return;
4-66 (B) voluntarily left the child alone or in the
4-67 possession of another not the parent without expressing an intent
4-68 to return, without providing for the adequate support of the child,
4-69 and remained away for a period of at least three months;
5-1 (C) voluntarily left the child alone or in the
5-2 possession of another without providing adequate support of the
5-3 child and remained away for a period of at least six months;
5-4 (D) knowingly placed or knowingly allowed the
5-5 child to remain in conditions or surroundings which endanger the
5-6 physical or emotional well-being of the child;
5-7 (E) engaged in conduct or knowingly placed the
5-8 child with persons who engaged in conduct which endangers the
5-9 physical or emotional well-being of the child;
5-10 (F) failed to support the child in accordance
5-11 with the parent's ability during a period of one year ending within
5-12 six months of the date of the filing of the petition;
5-13 (G) abandoned the child without identifying the
5-14 child or furnishing means of identification, and the child's
5-15 identity cannot be ascertained by the exercise of reasonable
5-16 diligence;
5-17 (H) voluntarily, and with knowledge of the
5-18 pregnancy, abandoned the mother of the child beginning at a time
5-19 during her pregnancy with the child and continuing through the
5-20 birth, failed to provide adequate support or medical care for the
5-21 mother during the period of abandonment before the birth of the
5-22 child, and remained apart from the child or failed to support the
5-23 child since the birth;
5-24 (I) contumaciously refused to submit to a
5-25 reasonable and lawful order of a court under Subchapter D, Chapter
5-26 261 [264];
5-27 (J) been the major cause of:
5-28 (i) the failure of the child to be
5-29 enrolled in school as required by the Education Code; or
5-30 (ii) the child's absence from the child's
5-31 home without the consent of the parents or guardian for a
5-32 substantial length of time or without the intent to return;
5-33 (K) executed before or after the suit is filed
5-34 an unrevoked or irrevocable affidavit of relinquishment of parental
5-35 rights as provided by this chapter;
5-36 (L) been convicted or has been placed on
5-37 community supervision, including deferred adjudication community
5-38 supervision, for being criminally responsible for the death or
5-39 serious injury of a child under the following sections of the Penal
5-40 Code or adjudicated under Title 3 for conduct that caused the death
5-41 or serious injury of a child and that would constitute a violation
5-42 of one of the following Penal Code sections:
5-43 (i) Section 19.02 (murder);
5-44 (ii) Section 19.03 (capital murder);
5-45 (iii) Section 19.04 (manslaughter);
5-46 (iv) Section 21.11 (indecency with a
5-47 child);
5-48 (v) [(iv)] Section 22.01 (assault);
5-49 (vi) [(v)] Section 22.011 (sexual
5-50 assault);
5-51 (vii) [(vi)] Section 22.02 (aggravated
5-52 assault);
5-53 (viii) [(vii)] Section 22.021 (aggravated
5-54 sexual assault);
5-55 (ix) [(viii)] Section 22.04 (injury to a
5-56 child, elderly individual, or disabled individual);
5-57 (x) [(ix)] Section 22.041 (abandoning or
5-58 endangering child);
5-59 (xi) [(x)] Section 25.02 (prohibited
5-60 sexual conduct);
5-61 (xii) [(xi)] Section 43.25 (sexual
5-62 performance by a child); and
5-63 (xiii) [(xii)] Section 43.26 (possession
5-64 or promotion of child pornography);
5-65 (M) had his or her parent-child relationship
5-66 terminated with respect to another child based on a finding that
5-67 the parent's conduct was in violation of Paragraph (D) or (E) or
5-68 substantially equivalent provisions of the law of another state;
5-69 (N) constructively abandoned the child who has
6-1 been in the permanent or temporary managing conservatorship of the
6-2 Department of Protective and Regulatory Services or an authorized
6-3 agency for not less than six months, and:
6-4 (i) the department or authorized agency
6-5 has made reasonable efforts to return the child to the parent;
6-6 (ii) the parent has not regularly visited
6-7 or maintained significant contact with the child; and
6-8 (iii) the parent has demonstrated an
6-9 inability to provide the child with a safe environment;
6-10 (O) failed to comply with the provisions of a
6-11 court order that specifically established the actions necessary for
6-12 the parent to obtain the return of the child who has been in the
6-13 permanent or temporary managing conservatorship of the Department
6-14 of Protective and Regulatory Services for not less than nine months
6-15 as a result of the child's removal from the parent under Chapter
6-16 262 for the abuse or neglect of the child;
6-17 (P) used a controlled substance, as defined by
6-18 Chapter 481, Health and Safety Code,[:]
6-19 [(i)] in a manner that endangered the
6-20 health or safety of the child, and:
6-21 (i) failed to complete a court-ordered
6-22 substance abuse treatment program; or
6-23 (ii) [repeatedly,] after completion of a
6-24 court-ordered substance abuse treatment program, continued to abuse
6-25 a controlled substance [in a manner that endangered the health or
6-26 safety of the child];
6-27 (Q) knowingly engaged in criminal conduct that
6-28 has resulted [results] in the parent's:
6-29 (i) conviction of an offense; and
6-30 (ii) confinement or imprisonment and
6-31 inability to care for the child for not less than two years from
6-32 the date of filing the petition; or
6-33 (R) been the cause of the child being born
6-34 addicted to alcohol or a controlled substance, other than a
6-35 controlled substance legally obtained by prescription, as defined
6-36 by Section 261.001(7); and
6-37 (2) that termination is in the best interest of the
6-38 child.
6-39 SECTION 14. Sections 161.211(a) and (b), Family Code, as
6-40 amended by Section 1, Chapter 600, Acts of the 75th Legislature,
6-41 Regular Session, 1997, and Section 2, Chapter 601, Acts of the 75th
6-42 Legislature, Regular Session, 1997, are reenacted to read as
6-43 follows:
6-44 (a) Notwithstanding Rule 329, Texas Rules of Civil
6-45 Procedure, the validity of an order terminating the parental rights
6-46 of a person who has been personally served or who has executed an
6-47 affidavit of relinquishment of parental rights or an affidavit of
6-48 waiver of interest in a child or whose rights have been terminated
6-49 under Section 161.002(b) is not subject to collateral or direct
6-50 attack after the sixth month after the date the order was signed.
6-51 (b) Notwithstanding Rule 329, Texas Rules of Civil
6-52 Procedure, the validity of an order terminating the parental rights
6-53 of a person who is served by citation by publication is not subject
6-54 to collateral or direct attack after the sixth month after the date
6-55 the order was signed.
6-56 SECTION 15. Section 162.008(b), Family Code, is amended to
6-57 read as follows:
6-58 (b) A petition for adoption may not be granted until the
6-59 following documents have been filed:
6-60 (1) a copy of the health, social, educational, and
6-61 genetic history report signed by the child's adoptive parents; and
6-62 (2) if the report is required to be submitted to the
6-63 bureau of vital statistics under [department by] Section
6-64 162.006(e), a certificate from the bureau [department]
6-65 acknowledging receipt of the report.
6-66 SECTION 16. Section 261.101(d), Family Code, is amended to
6-67 read as follows:
6-68 (d) Unless waived in writing by the person making the
6-69 report, the [The] identity of an individual making a report under
7-1 this chapter is confidential and may be disclosed only:
7-2 (1) as provided by [on the order of a court rendered
7-3 under] Section 261.201; or
7-4 (2) to a law enforcement officer for the purposes of
7-5 conducting a criminal investigation of the report.
7-6 SECTION 17. Section 261.201, Family Code, is amended by
7-7 amending Subsections (b) and (c) and adding Subsection (h) to read
7-8 as follows:
7-9 (b) A court may order the disclosure of information that is
7-10 confidential under this section if:
7-11 (1) a motion has been filed with the court requesting
7-12 the release of the information;
7-13 (2) a notice of hearing has been served on the
7-14 investigating agency and all other interested parties; and
7-15 (3) after hearing and an in camera review of the
7-16 requested information, the court determines that the disclosure of
7-17 the requested information is:
7-18 (A) essential to the administration of justice;
7-19 and
7-20 (B) not likely to endanger the life or safety
7-21 of:
7-22 (i) a child who is the subject of the
7-23 report of alleged or suspected abuse or neglect;
7-24 (ii) a person who makes a report of
7-25 alleged or suspected abuse or neglect; or
7-26 (iii) any other person who participates in
7-27 an investigation of reported abuse or neglect or who provides care
7-28 for the child.
7-29 (c) In addition to Subsection (b), a court, on its own
7-30 motion, may order disclosure of information that is confidential
7-31 under this section if:
7-32 (1) the order is rendered at a hearing for which all
7-33 parties have been given notice;
7-34 (2) the court finds that disclosure of the information
7-35 is:
7-36 (A) essential to the administration of justice;
7-37 and
7-38 (B) not likely to endanger the life or safety
7-39 of:
7-40 (i) a child who is the subject of the
7-41 report of alleged or suspected abuse or neglect;
7-42 (ii) a person who makes a report of
7-43 alleged or suspected abuse or neglect; or
7-44 (iii) any other person who participates in
7-45 an investigation of reported abuse or neglect or who provides care
7-46 for the child; and
7-47 (3) the order is reduced to writing or made on the
7-48 record in open court.
7-49 (h) This section does not apply to an investigation of child
7-50 abuse or neglect in a home or facility regulated under Chapter 42,
7-51 Human Resources Code.
7-52 SECTION 18. Section 261.301(b), Family Code, is amended to
7-53 read as follows:
7-54 (b) A state agency shall investigate a report that alleges
7-55 abuse or neglect occurred in a facility operated, licensed,
7-56 certified, or registered by that agency as provided by Subchapter
7-57 E. In conducting an investigation for a facility operated,
7-58 licensed, certified, registered, or listed by the department, the
7-59 department shall perform the investigation as provided by:
7-60 (1) Subchapter E; and
7-61 (2) the Human Resources Code.
7-62 SECTION 19. Section 261.303, Family Code, is amended by
7-63 amending Subsection (c) and adding Subsection (d) to read as
7-64 follows:
7-65 (c) If a parent or person responsible for the child's care
7-66 does not consent to release of the child's prior medical,
7-67 psychological, or psychiatric records or to a medical,
7-68 psychological, or psychiatric examination of the child that is
7-69 requested by the department or designated agency, the court having
8-1 family law jurisdiction shall, for good cause shown, order the
8-2 records to be released or the examination to be made at the times
8-3 and places designated by the court.
8-4 (d) A person, including a medical facility, that makes a
8-5 report under Subchapter B shall release to the department or
8-6 designated agency, as part of the required report under Section
8-7 261.103, records that directly relate to the suspected abuse or
8-8 neglect without requiring parental consent or a court order.
8-9 SECTION 20. Sections 261.305(a)-(c), Family Code, are
8-10 amended to read as follows:
8-11 (a) An investigation may include an inquiry into the
8-12 possibility that [the child,] a parent[,] or a person responsible
8-13 for the care of a [the] child who is the subject of a report under
8-14 Subchapter B has a history of medical or mental illness.
8-15 (b) If the parent or person [responsible for the care of the
8-16 child] does not consent to an examination or allow the department
8-17 or designated agency to have access to medical or mental health
8-18 records requested by the department or agency, the court having
8-19 family law jurisdiction, for good cause shown, shall order the
8-20 examination to be made or that the department or agency be
8-21 permitted to have access to the records under terms and conditions
8-22 prescribed by the court.
8-23 (c) If the court determines that the parent or person
8-24 [responsible for the care of the child] is indigent, the court
8-25 shall appoint an attorney to represent the parent or person
8-26 [responsible for the child] at the hearing [to obtain medical or
8-27 mental health records]. The fees for the appointed attorney shall
8-28 be paid as provided by Chapter 107 [the department or designated
8-29 agency].
8-30 SECTION 21. Section 261.405, Family Code, as amended by
8-31 Chapters 162 and 1374, Acts of the 75th Legislature, Regular
8-32 Session, 1997, is reenacted to read as follows:
8-33 Sec. 261.405. INVESTIGATIONS IN PRE-ADJUDICATION AND
8-34 POST-ADJUDICATION SECURE JUVENILE FACILITIES. A report of alleged
8-35 abuse or neglect in a public or private juvenile pre-adjudication
8-36 secure detention facility, including hold-over facilities, or
8-37 public or private juvenile post-adjudication secure correctional
8-38 facility, except for a facility operated solely for children
8-39 committed to the Texas Youth Commission, shall be made to a local
8-40 law enforcement agency for investigation. The local law
8-41 enforcement agency shall immediately notify the Texas Juvenile
8-42 Probation Commission of any report the agency receives.
8-43 SECTION 22. Section 261.406(b), Family Code, is amended to
8-44 read as follows:
8-45 (b) The department shall send a written report of the
8-46 department's investigation, as appropriate, to the Texas Education
8-47 Agency, the agency responsible for teacher certification, the local
8-48 school board or the school's [local] governing body, and the school
8-49 principal or director, unless the principal or director is alleged
8-50 to have committed the abuse or neglect, for appropriate action. On
8-51 request, the department shall provide a copy of the report of
8-52 investigation to the parent, managing conservator, or legal
8-53 guardian of a child who is the subject of the investigation and to
8-54 the person alleged to have committed the abuse or neglect. The
8-55 report of investigation shall be edited to protect the identity of
8-56 the persons who made the report of abuse or neglect [or provided
8-57 information for the report of abuse or neglect]. Section
8-58 261.201(b) applies to the release of confidential information
8-59 relating to the investigation of a report of abuse or neglect under
8-60 this section and to the identity of the person who made the report
8-61 of abuse or neglect.
8-62 SECTION 23. The heading of Chapter 262, Family Code, is
8-63 amended to read as follows:
8-64 CHAPTER 262. [EMERGENCY] PROCEDURES IN SUIT BY GOVERNMENTAL
8-65 ENTITY TO PROTECT HEALTH AND SAFETY OF CHILD
8-66 SECTION 24. Section 262.001, Family Code, is amended to read
8-67 as follows:
8-68 Sec. 262.001. AUTHORIZED ACTIONS BY GOVERNMENTAL ENTITY.
8-69 (a) A governmental entity with an interest in the child may file a
9-1 suit affecting the parent-child relationship requesting an
9-2 [emergency] order or take possession of a child without a court
9-3 order as provided by this chapter.
9-4 (b) In determining the reasonable efforts that are required
9-5 to be made with respect to preventing or eliminating the need to
9-6 remove a child from the child's home or to make it possible to
9-7 return a child to the child's home, the child's health and safety
9-8 is the paramount concern.
9-9 SECTION 25. Section 262.002, Family Code, is amended to read
9-10 as follows:
9-11 Sec. 262.002. JURISDICTION [FOR EMERGENCY PROCEDURES]. A
9-12 suit brought by a governmental entity requesting an [emergency]
9-13 order under this chapter may be filed in a court with jurisdiction
9-14 to hear the suit in the county in which the child is found.
9-15 SECTION 26. Section 262.007(c), Family Code, is amended to
9-16 read as follows:
9-17 (c) If a person entitled to possession of the child is not
9-18 immediately available to take possession of the child, the law
9-19 enforcement officer shall deliver the child to the Department of
9-20 Protective and Regulatory Services. Until a person entitled to
9-21 possession of the child takes possession of the child, the
9-22 department may, without a court order, retain possession of the
9-23 child not longer than five [14] days after the date the child is
9-24 delivered to the department. While the department retains
9-25 possession of a child under this subsection, the department may
9-26 place the child in foster home care. If a parent or other person
9-27 entitled to possession of the child does not take possession of the
9-28 child before the 6th [15th] day after the date the child is
9-29 delivered to the department, the department shall proceed under
9-30 this chapter as if the law enforcement officer took possession of
9-31 the child under Section 262.104.
9-32 SECTION 27. The heading for Subchapter B, Chapter 262,
9-33 Family Code, is amended to read as follows:
9-34 SUBCHAPTER B. TAKING POSSESSION OF CHILD [IN EMERGENCY]
9-35 SECTION 28. Section 262.101, Family Code, is amended to read
9-36 as follows:
9-37 Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
9-38 CHILD. An original suit [A petition or affidavit] filed by a
9-39 governmental entity that requests [requesting] permission to take
9-40 possession of a child without prior notice and a hearing must [in
9-41 an emergency shall] be supported by an affidavit sworn to by a
9-42 person with personal knowledge and stating [shall state] facts
9-43 sufficient to satisfy a person of ordinary prudence and caution
9-44 that:
9-45 (1) there is an immediate danger to the physical
9-46 health or safety of the child or the child has been a victim of
9-47 neglect or sexual abuse and that continuation in the home would be
9-48 contrary to the child's welfare; and
9-49 (2) there is no time, consistent with the physical
9-50 health or safety of the child, for an adversary hearing or to make
9-51 reasonable efforts to prevent or eliminate the need for the removal
9-52 of the child.
9-53 SECTION 29. Section 262.102(a), Family Code, is amended to
9-54 read as follows:
9-55 (a) Before a court may, without prior notice and a hearing,
9-56 issue a temporary restraining order or attachment of a child in a
9-57 suit [requesting an emergency order] brought by a governmental
9-58 entity, the court must find that:
9-59 (1) there is an immediate danger to the physical
9-60 health or safety of the child or the child has been a victim of
9-61 neglect or sexual abuse and that continuation in the home would be
9-62 contrary to the child's welfare; and
9-63 (2) there is no time, consistent with the physical
9-64 health or safety of the child and the nature of the emergency, to
9-65 hold an adversary hearing or to make reasonable efforts to prevent
9-66 or eliminate the need for removal of the child.
9-67 SECTION 30. Section 262.106, Family Code, is amended by
9-68 adding Subsection (d) to read as follows:
9-69 (d) For the purpose of determining under Subsection (a) the
10-1 first working day after the date the child is taken into
10-2 possession, the child is considered to have been taken into
10-3 possession by the Department of Protective and Regulatory Services
10-4 on the expiration of the five-day period permitted under Section
10-5 262.007(c) or 262.110(b), as appropriate.
10-6 SECTION 31. Section 262.109(d), Family Code, is amended to
10-7 read as follows:
10-8 (d) The written notice may be waived by the court at the
10-9 initial hearing:
10-10 (1) on a showing that the parents, conservators, or
10-11 other custodians of the child could not be located; or
10-12 (2) for other good cause.
10-13 SECTION 32. Section 262.110, Family Code, is amended to read
10-14 as follows:
10-15 Sec. 262.110. TAKING POSSESSION OF CHILD IN EMERGENCY WITH
10-16 INTENT TO RETURN HOME. (a) An authorized representative of the
10-17 Department of Protective and Regulatory Services, a law enforcement
10-18 officer, or a juvenile probation officer may take temporary
10-19 possession of a child without a court order on discovery of a child
10-20 in a situation of danger to the child's physical health or safety
10-21 when the sole purpose is to deliver the child without unnecessary
10-22 delay to the parent, managing conservator, possessory conservator,
10-23 guardian, caretaker, or custodian who is presently entitled to
10-24 possession of the child.
10-25 (b) Until a parent or other person entitled to possession of
10-26 the child takes possession of the child, the department may retain
10-27 possession of the child without a court order for not more than
10-28 five days. On the expiration of the fifth day, if a parent or
10-29 other person entitled to possession does not take possession of the
10-30 child, the department shall take action under this chapter as if
10-31 the department took possession of the child under Section 262.104.
10-32 SECTION 33. Subchapter B, Chapter 262, Family Code, is
10-33 amended by adding Section 262.113 to read as follows:
10-34 Sec. 262.113. FILING SUIT WITHOUT TAKING POSSESSION OF
10-35 CHILD. An original suit filed by a governmental entity that
10-36 requests to take possession of a child after notice and a hearing
10-37 must be supported by an affidavit sworn to by a person with
10-38 personal knowledge and stating facts sufficient to satisfy a person
10-39 of ordinary prudence and caution that:
10-40 (1) reasonable efforts have been made to prevent or
10-41 eliminate the need to remove the child from the child's home; and
10-42 (2) allowing the child to remain in the home would be
10-43 contrary to the child's welfare.
10-44 SECTION 34. Section 262.201, Family Code, is amended by
10-45 adding Subsection (g) to read as follows:
10-46 (g) For the purpose of determining under Subsection (a) the
10-47 14th day after the date the child is taken into possession, a child
10-48 is considered to have been taken into possession by the department
10-49 on the expiration of the five-day period permitted under Section
10-50 262.007(c) or 262.110(b), as appropriate.
10-51 SECTION 35. Section 262.2015, Family Code, is amended to
10-52 read as follows:
10-53 Sec. 262.2015. AGGRAVATED CIRCUMSTANCES [ACCELERATED TRIAL
10-54 ON THE MERITS]. (a) The court may waive the requirement of a
10-55 service plan and the requirement to make reasonable efforts to
10-56 return the child to a parent and may accelerate the trial schedule
10-57 to result in a final order for a child under the care of the
10-58 department at an earlier date than provided by Subchapter D,
10-59 Chapter 263, if the court finds that all reasonable efforts have
10-60 been made to return the child to a parent or that the parent has
10-61 subjected the child to aggravated circumstances.
10-62 (b) The court may find under Subsection (a) that a parent
10-63 has subjected the child to aggravated circumstances if:
10-64 (1) the parent abandoned the child without
10-65 identification or a means for identifying the child [orders at the
10-66 conclusion of the full adversary hearing that the child may not be
10-67 placed in the child's home];
10-68 (2) [finds that] the child is a victim of serious
10-69 bodily injury or sexual abuse inflicted by the parent or by another
11-1 person with the parent's consent; [and]
11-2 (3) the parent [finds that there is probable cause to
11-3 believe that a party to the suit] has engaged in conduct against
11-4 the child or against another child of the parent that would
11-5 constitute an offense under the following provisions of the Penal
11-6 Code:
11-7 (A) Section 19.02 (murder);
11-8 (B) Section 19.03 (capital murder);
11-9 (C) Section 19.04 (manslaughter);
11-10 (D) Section 21.11 (indecency with a child);
11-11 (E) [(B)] Section 22.011 (sexual assault);
11-12 (F) [(C)] Section 22.02 (aggravated assault);
11-13 (G) [(D)] Section 22.021 (aggravated sexual
11-14 assault);
11-15 (H) [(E)] Section 22.04 (injury to a child,
11-16 elderly individual, or disabled individual);
11-17 (I) [(F)] Section 22.041 (abandoning or
11-18 endangering child);
11-19 (J) [(G)] Section 25.02 (prohibited sexual
11-20 conduct);
11-21 (K) [(H)] Section 43.25 (sexual performance by a
11-22 child); or
11-23 (L) [(I)] Section 43.26 (possession or promotion
11-24 of child pornography);
11-25 (4) the parent voluntarily left the child alone or in
11-26 the possession of another person not the parent of the child for at
11-27 least six months without expressing an intent to return and without
11-28 providing adequate support for the child; or
11-29 (5) the parent's parental rights with regard to
11-30 another child have been involuntarily terminated based on a finding
11-31 that the parent's conduct violated Section 161.001(1)(D) or (E) or
11-32 a substantially equivalent provision of another state's law.
11-33 (c) On finding that reasonable efforts to prevent or
11-34 eliminate the need to remove the child or to make it possible for
11-35 the child to safely return to the child's home are not required,
11-36 the court shall at any time before the 30th day after the date of
11-37 the finding, conduct an initial permanency hearing under Subchapter
11-38 D, Chapter 263. Separate notice of the permanency plan is not
11-39 required but may be given with a notice of a hearing under this
11-40 section.
11-41 (d) The Department of Protective and Regulatory Services
11-42 shall make reasonable efforts to finalize the permanent placement
11-43 of a child for whom the court has made the finding described by
11-44 Subsection (c). The court shall set the suit for trial on the
11-45 merits as required by Subchapter D, Chapter 263, in order to
11-46 facilitate final placement of the child.
11-47 SECTION 36. Section 262.203, Family Code, is amended to read
11-48 as follows:
11-49 Sec. 262.203. TRANSFER OF SUIT. (a) On the motion of a
11-50 party or the court's own motion, if applicable, the court that
11-51 rendered the temporary order shall [transfer the suit] in
11-52 accordance with procedures provided by Chapter 155:
11-53 (1) transfer the suit to the court of continuing,
11-54 exclusive jurisdiction, if any; [or]
11-55 (2) if grounds exist for mandatory transfer from the
11-56 court of continuing, exclusive jurisdiction under Section 155.201,
11-57 order transfer of the suit from that court; or
11-58 (3) if grounds exist for transfer based on improper
11-59 venue, order transfer of the suit [if there is no court of
11-60 continuing jurisdiction,] to the court having venue of the suit
11-61 [affecting the parent-child relationship] under Chapter 103.
11-62 (b) Notwithstanding Section 155.204, a motion to transfer
11-63 relating to [under this section is timely if made at any time after
11-64 the date] a suit [was] filed under this chapter may be filed
11-65 separately from the petition and is timely if filed while the case
11-66 is pending.
11-67 (c) Notwithstanding Sections 6.407 and 103.002, a court
11-68 exercising jurisdiction under this chapter is not required to
11-69 transfer the suit to a court in which a parent has filed a suit
12-1 for dissolution of marriage before a final order for the protection
12-2 of the child has been rendered under Subchapter E, Chapter 263.
12-3 SECTION 37. Subchapter C, Chapter 262, Family Code, is
12-4 amended by adding Section 262.205 to read as follows:
12-5 Sec. 262.205. HEARING WHEN CHILD NOT IN POSSESSION OF
12-6 GOVERNMENTAL ENTITY. (a) In a suit requesting possession of a
12-7 child after notice and hearing, the court may render a temporary
12-8 restraining order as provided by Section 105.001. The suit shall
12-9 be promptly set for hearing.
12-10 (b) After the hearing, the court may grant the request to
12-11 remove the child from the parent, managing conservator, possessory
12-12 conservator, guardian, caretaker, or custodian entitled to
12-13 possession of the child if the court finds sufficient evidence to
12-14 satisfy a person of ordinary prudence and caution that:
12-15 (1) reasonable efforts have been made to prevent or
12-16 eliminate the need to remove the child from the child's home; and
12-17 (2) allowing the child to remain in the home would be
12-18 contrary to the child's welfare.
12-19 (c) If the court orders removal of the child from the
12-20 child's home, the court shall:
12-21 (1) issue an appropriate temporary order under Chapter
12-22 105; and
12-23 (2) inform each parent in open court that parental and
12-24 custodial rights and duties may be subject to restriction or
12-25 termination unless the parent is willing and able to provide a safe
12-26 environment for the child.
12-27 (d) If citation by publication is required for a parent or
12-28 alleged or probable father in an action under this chapter because
12-29 the location of the person is unknown, the court may render a
12-30 temporary order without regard to whether notice of the citation
12-31 has been published.
12-32 (e) Unless it is not in the best interest of the child, the
12-33 court shall place a child who has been removed under this section
12-34 with:
12-35 (1) the child's noncustodial parent; or
12-36 (2) another relative of the child if placement with
12-37 the noncustodial parent is inappropriate.
12-38 (f) If the court finds that the child requires protection
12-39 from family violence by a member of the child's family or
12-40 household, the court shall render a protective order for the child
12-41 under Title 4.
12-42 SECTION 38. Section 263.101, Family Code, is amended to read
12-43 as follows:
12-44 Sec. 263.101. DEPARTMENT TO FILE SERVICE PLAN. Not later
12-45 than the 45th day after the date the court renders a temporary
12-46 order appointing the department as temporary managing conservator
12-47 of a child [of the conclusion of a full adversary hearing] under
12-48 Chapter 262, the department or other agency appointed as the
12-49 managing conservator of a child shall file a service plan.
12-50 SECTION 39. Section 263.105(a), Family Code, is amended to
12-51 read as follows:
12-52 (a) The service plan currently in effect shall be filed with
12-53 the court [along with the next required status report].
12-54 SECTION 40. Section 263.201, Family Code, is amended to read
12-55 as follows:
12-56 Sec. 263.201. STATUS HEARING; TIME. (a) Not later than the
12-57 60th day after the date the court renders a temporary order
12-58 appointing the department as temporary managing conservator of a
12-59 child, the court shall hold a status hearing to review the child's
12-60 status and the service [permanency] plan developed for the child.
12-61 (b) A status hearing is not required if the court holds an
12-62 initial permanency hearing under Section 262.2015 before the date a
12-63 status hearing is required by this section.
12-64 SECTION 41. Section 263.202, Family Code, is amended by
12-65 adding Subsection (d) to read as follows:
12-66 (d) If a service plan with respect to a parent has not been
12-67 filed with the court, the court shall consider whether to waive the
12-68 service plan under Section 262.2015.
12-69 SECTION 42. Section 263.306, Family Code, is amended to read
13-1 as follows:
13-2 Sec. 263.306. PERMANENCY HEARINGS: PROCEDURE. (a) At each
13-3 permanency hearing the court shall:
13-4 (1) identify all persons or parties present at the
13-5 hearing or those given notice but failing to appear;
13-6 (2) review the efforts of the department or another
13-7 agency in:
13-8 (A) attempting to locate all necessary persons;
13-9 (B) requesting service of citation; and
13-10 (C) obtaining the assistance of a parent in
13-11 providing information necessary to locate an absent parent;
13-12 (3) return the child to the parent or parents if the
13-13 child's parent or parents are willing and able to provide the child
13-14 with a safe environment and the return of the child is in the
13-15 child's best interest;
13-16 (4) place the child with a person or entity, other
13-17 than a parent, entitled to service under Chapter 102 if the person
13-18 or entity is willing and able to provide the child with a safe
13-19 environment and the placement [return] of the child is in the
13-20 child's best interest;
13-21 (5) evaluate the department's efforts to identify
13-22 relatives who could provide the child with a safe environment, if
13-23 the child is not returned to a parent or another person or entity
13-24 entitled to service under Chapter 102;
13-25 (6) evaluate the parties' compliance with temporary
13-26 orders and the service plan;
13-27 (7) determine whether:
13-28 (A) the child continues to need substitute care;
13-29 (B) the child's current placement is appropriate
13-30 for meeting the child's needs; and
13-31 (C) other plans or services are needed to meet
13-32 the child's special needs or circumstances;
13-33 (8) if the child is placed in institutional care,
13-34 determine whether efforts have been made to ensure placement of the
13-35 child in the least restrictive environment consistent with the best
13-36 interest and special needs of the child;
13-37 (9) if the child is 16 years of age or older, order
13-38 services that are needed to assist the child in making the
13-39 transition from substitute care to independent living if the
13-40 services are available in the community;
13-41 (10) determine plans, services, and further temporary
13-42 orders necessary to ensure that a final order is rendered before
13-43 the date for dismissal of the suit under this chapter; and
13-44 (11) determine the date for dismissal of the suit
13-45 under this chapter and give notice in open court to all parties of:
13-46 (A) the dismissal date;
13-47 (B) the date of the next permanency hearing; and
13-48 (C) the date the suit is set for trial.
13-49 (b) The court shall also review the service plan, permanency
13-50 report, and other information submitted at the hearing to:
13-51 (1) determine:
13-52 (A) the safety of the child;
13-53 (B) the continuing necessity and appropriateness
13-54 of the placement;
13-55 (C) the extent of compliance with the case plan;
13-56 and
13-57 (D) the extent of progress that has been made
13-58 toward alleviating or mitigating the causes necessitating the
13-59 placement of the child in foster care; and
13-60 (2) project a likely date by which the child may be
13-61 returned to and safely maintained in the child's home, placed for
13-62 adoption, or placed in permanent managing conservatorship.
13-63 SECTION 43. Section 263.402, Family Code, is amended to read
13-64 as follows:
13-65 Sec. 263.402. MONITORED RETURN OF CHILD TO PARENT [OR
13-66 PLACEMENT WITH RELATIVE]. (a) Notwithstanding Section 263.401,
13-67 the court may retain jurisdiction and not dismiss the suit or
13-68 render a final order as required by that section if the court
13-69 renders a temporary order that:
14-1 (1) finds that retaining jurisdiction under this
14-2 section is in the best interest of the child;
14-3 (2) orders the department to return the child to the
14-4 child's parent [or to place the child with a relative of the
14-5 child];
14-6 (3) orders the department to continue to serve as
14-7 temporary managing conservator of the child; and
14-8 (4) orders the department to monitor the child's
14-9 placement to ensure that the child is in a safe environment.
14-10 (b) If the court renders an order under this section, the
14-11 court shall:
14-12 (1) include in the order specific findings regarding
14-13 the grounds for the order; and
14-14 (2) schedule a new date, not later than the 180th day
14-15 after the date the temporary order is rendered, for dismissal of
14-16 the suit.
14-17 (c) If a child placed with a parent [or relative] under this
14-18 section must be moved from that home by the department before the
14-19 dismissal of the suit or the rendering of a final order, the court
14-20 shall, at the time of the move, schedule a new date for dismissal
14-21 of the suit. The new dismissal date may not be later than the
14-22 original dismissal date established under Section 263.401 or the
14-23 180th day after the date the child is moved under this subsection,
14-24 whichever date is later.
14-25 (d) If the court renders an order under this section, the
14-26 court must include in the order specific findings regarding the
14-27 grounds for the order.
14-28 SECTION 44. Section 264.201, Family Code, is amended by
14-29 adding Subsection (e) to read as follows:
14-30 (e) The department may not provide and a court may not order
14-31 the department to provide supervision for visitation in a child
14-32 custody matter unless the department is a petitioner or intervener
14-33 in the underlying suit.
14-34 SECTION 45. Sections 263.003 and 263.004, Family Code, are
14-35 repealed.
14-36 SECTION 46. (a) This Act takes effect September 1, 1999.
14-37 (b) The changes in law made by Sections 1-5 and 11 of this
14-38 Act apply only to a suit affecting the parent-child relationship
14-39 filed on or after the effective date of this Act. A suit filed
14-40 before the effective date of this Act is governed by the law in
14-41 effect on the date the suit was filed, and the former law is
14-42 continued in effect for that purpose.
14-43 (c) The change in law made by this Act to Chapter 262,
14-44 Family Code, applies only to a suit affecting the parent-child
14-45 relationship filed requesting an order to take possession of a
14-46 child or to a child taken into possession without a court order on
14-47 or after that date. A suit filed before the effective date of this
14-48 Act or a child taken into possession before the effective date of
14-49 this Act is governed by the law in effect on the date the suit was
14-50 filed or the child was taken into possession, as appropriate, and
14-51 the former law is continued in effect for that purpose.
14-52 SECTION 47. The importance of this legislation and the
14-53 crowded condition of the calendars in both houses create an
14-54 emergency and an imperative public necessity that the
14-55 constitutional rule requiring bills to be read on three several
14-56 days in each house be suspended, and this rule is hereby suspended.
14-57 * * * * *