76R10553 JMM-F
By Goodman, Naishtat H.B. No. 2355
Substitute the following for H.B. No. 2355:
By Pickett C.S.H.B. No. 2355
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the adoption, protection, and placement of children.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 107.051(c), Family Code, is amended to
1-5 read as follows:
1-6 (c) In a suit in which adoption is requested or possession
1-7 of or access to the child is an issue and in which the Department
1-8 of Protective and Regulatory Services is not a party [or has no
1-9 interest], the court shall appoint a private agency or person to
1-10 conduct the social study.
1-11 SECTION 2. Section 108.001(c), Family Code, is amended to
1-12 read as follows:
1-13 (c) Except as otherwise provided by law, [All] the records
1-14 required under this section to be maintained by the bureau of vital
1-15 statistics [and the records of a child-placing agency that has
1-16 ceased operations] are confidential [and no person is entitled to
1-17 access to or information from these records except for good cause
1-18 on an order of the court that rendered the order].
1-19 SECTION 3. Section 108.003, Family Code, is amended to read
1-20 as follows:
1-21 Sec. 108.003. TRANSMITTAL OF INFORMATION REGARDING ADOPTION.
1-22 (a) The clerk of a court that renders a decree of adoption shall,
1-23 not later than the 10th day of the first month after the month in
1-24 which the adoption is rendered, transmit to the central registry of
2-1 the bureau of vital statistics certified report of adoption that
2-2 includes:
2-3 (1) the name of the adopted child after adoption as
2-4 shown in the adoption order;
2-5 (2) the birth date of the adopted child;
2-6 (3) the docket number of the adoption suit;
2-7 (4) the identity of the court rendering the adoption;
2-8 (5) the date of the adoption order;
2-9 (6) the name and address of each parent, guardian,
2-10 managing conservator, or other person whose consent to adoption was
2-11 required or waived under Chapter 162 [159], or whose parental
2-12 rights were terminated in the adoption suit;
2-13 (7) the identity of the licensed child placing agency,
2-14 if any, through which the adopted child was placed for adoption;
2-15 and
2-16 (8) the identity, address, and telephone number of the
2-17 registry through which the adopted child may register as an
2-18 adoptee.
2-19 (b) Except as otherwise provided by law, for good cause
2-20 shown, or on an order of the court that granted the adoption or
2-21 terminated the proceedings under Section 155.001, the records
2-22 concerning a child maintained by the district clerk after rendition
2-23 of a decree of adoption, the records of a child-placing agency that
2-24 has ceased operations, and the records required under this section
2-25 to be maintained by the bureau of vital statistics are
2-26 confidential, and no person is entitled to access to or information
2-27 from these records.
3-1 SECTION 4. Section 108.005, Family Code, is amended to read
3-2 as follows:
3-3 Sec. 108.005. ADOPTION RECORDS RECEIVED BY BUREAU OF VITAL
3-4 STATISTICS. (a) When the bureau of vital statistics receives a
3-5 record [records] from the district clerk showing that continuing,
3-6 exclusive jurisdiction of a child has been lost due to the adoption
3-7 of the child, the bureau shall close the records concerning that
3-8 child.
3-9 (b) An [Except for statistical purposes, the bureau may not
3-10 disclose any information concerning the prior proceedings affecting
3-11 the child. Except as provided in Chapter 162, any subsequent]
3-12 inquiry concerning a [the] child who has been adopted shall be
3-13 handled as though the child had not [been] previously been the
3-14 subject of a suit affecting the parent-child relationship. [The
3-15 bureau shall provide to the Department of Protective and Regulatory
3-16 Services registry information as necessary for the department to
3-17 comply with federal law or regulations regarding the compilation or
3-18 reporting of adoption information to federal officials and other
3-19 information as necessary for the department to administer the
3-20 central registry as provided in Subchapter E, Chapter 162.]
3-21 [(b) On the receipt of additional records concerning a child
3-22 who has been the subject of a suit affecting the parent-child
3-23 relationship in which the records have been closed, a new file
3-24 shall be made and maintained.]
3-25 SECTION 5. Chapter 108, Family Code, is amended by adding
3-26 Section 108.110 to read as follows:
3-27 Sec. 108.110. RELEASE OF INFORMATION BY BUREAU OF VITAL
4-1 STATISTICS. (a) The bureau of vital statistics shall provide to
4-2 the Department of Protective and Regulatory Services:
4-3 (1) adoption information as necessary for the
4-4 department to comply with federal law or regulations regarding the
4-5 compilation or reporting of adoption information to federal
4-6 officials; and
4-7 (2) other information as necessary for the department
4-8 to administer its duties.
4-9 (b) The bureau may release otherwise confidential
4-10 information from the bureau's central record files to another
4-11 governmental entity that has a specific need for the information
4-12 and maintains appropriate safeguards to prevent further
4-13 dissemination of the information.
4-14 SECTION 6. Section 155.204, Family Code, is amended by
4-15 amending Subsection (a) and adding Subsection (f) to read as
4-16 follows:
4-17 (a) Except as provided by Section 262.203, a [A] motion to
4-18 transfer by a petitioner or movant is timely if it is made at the
4-19 time the initial pleadings are filed. A motion to transfer by
4-20 another party is timely if it is made on or before the first Monday
4-21 after the 20th day after the date of service of citation or notice
4-22 of the suit or before the commencement of the hearing, whichever is
4-23 sooner. If a timely motion to transfer has been filed and no
4-24 controverting affidavit is filed within the period allowed for its
4-25 filing, the proceeding shall be transferred promptly without a
4-26 hearing to the proper court.
4-27 (f) If a transfer order has been rendered by a court
5-1 exercising jurisdiction under Chapter 262, a party may file the
5-2 transfer order with the clerk of the court of continuing, exclusive
5-3 jurisdiction. On receipt and without a hearing, the clerk of the
5-4 court of continuing, exclusive jurisdiction shall transfer the
5-5 files as provided by this subchapter.
5-6 SECTION 7. Sections 161.211(a) and (b), Family Code, as
5-7 amended by Section 1, Chapter 600, Acts of the 75th Legislature,
5-8 Regular Session, 1997, and Section 2, Chapter 601, Acts of the 75th
5-9 Legislature, Regular Session, 1997, are reenacted to read as
5-10 follows:
5-11 (a) Notwithstanding Rule 329, Texas Rules of Civil
5-12 Procedure, the validity of an order terminating the parental rights
5-13 of a person who has been personally served or who has executed an
5-14 affidavit of relinquishment of parental rights or an affidavit of
5-15 waiver of interest in a child or whose rights have been terminated
5-16 under Section 161.002(b) is not subject to collateral or direct
5-17 attack after the sixth month after the date the order was signed.
5-18 (b) Notwithstanding Rule 329, Texas Rules of Civil
5-19 Procedure, the validity of an order terminating the parental rights
5-20 of a person who is served by citation by publication is not subject
5-21 to collateral or direct attack after the sixth month after the date
5-22 the order was signed.
5-23 SECTION 8. Sections 162.005(e) and (f), Family Code, are
5-24 amended to read as follows:
5-25 (e) The person or entity who places the child for adoption
5-26 shall provide the prospective adoptive parents a copy of the report
5-27 as early as practicable before the first meeting of the adoptive
6-1 parents with the child. The copy of the report shall be edited to
6-2 protect the identity of birth parents and their families, unless
6-3 this information is already known to the adoptive parents or
6-4 readily available through other sources, including the court
6-5 records of a suit to terminate the parent-child relationship under
6-6 Chapter 161.
6-7 (f) The department, licensed child-placing agency, parent,
6-8 guardian, person, or entity who prepares and files the original
6-9 report is required to furnish supplemental medical, psychological,
6-10 and psychiatric information to the adoptive parents if that
6-11 information becomes available and to file the supplemental
6-12 information where the original report is filed. For a
6-13 child-placing agency that has ceased operations and sent the
6-14 agency's records to the bureau of vital statistics, on receipt by
6-15 the bureau of supplemental medical, psychological, or psychiatric
6-16 information for a child placed for adoption by the agency, the
6-17 bureau shall file the supplemental information where the original
6-18 report is filed and furnish the information to the adoptive
6-19 parents. If the adoptive parents are deceased, the bureau may
6-20 provide the supplemental information, with or without a request, to
6-21 the persons entitled to examine adoption records under Section
6-22 162.006(b). The supplemental information shall be retained for as
6-23 long as the original report is required to be retained.
6-24 SECTION 9. Sections 162.006(a), (b), and (e), Family Code,
6-25 are amended to read as follows:
6-26 (a) The department, licensed child-placing agency, person,
6-27 or entity placing a child for adoption shall inform the prospective
7-1 adoptive parents of their right to examine the records and other
7-2 information relating to the history of the child. The person or
7-3 entity placing the child for adoption shall edit the records and
7-4 information to protect the identity of [the biological parents and]
7-5 any [other] person, including the child's birth parents, whose
7-6 identity is confidential.
7-7 (b) The department, licensed child-placing agency, bureau of
7-8 vital statistics, or court retaining a copy of the report shall
7-9 provide an edited [a] copy of the report [that has been edited to
7-10 protect the identity of the birth parents and any other person
7-11 whose identity is confidential] to the following persons on
7-12 request:
7-13 (1) an adoptive parent of the adopted child;
7-14 (2) the managing conservator, guardian of the person,
7-15 or legal custodian of the adopted child;
7-16 (3) the adopted child, after the child is an adult;
7-17 (4) the surviving spouse of the adopted child if the
7-18 adopted child is dead and the spouse is the parent or guardian of a
7-19 child of the deceased adopted child; or
7-20 (5) a progeny of the adopted child if the adopted
7-21 child is dead and the progeny is an adult.
7-22 (e) The report shall be retained for 99 years from the date
7-23 of the adoption by the department or licensed child-placing agency
7-24 placing the child for adoption. If the agency ceases to function
7-25 as a child-placing agency, the agency shall transfer all the
7-26 reports to the bureau of vital statistics [department] or, after
7-27 giving notice to the bureau [department], to a transferee agency
8-1 that is assuming responsibility for the preservation of the
8-2 agency's adoption records. If the child has not been placed for
8-3 adoption by the department or a licensed child-placing agency and
8-4 if the child is being adopted by a person other than the child's
8-5 stepparent, grandparent, aunt, or uncle by birth, marriage, or
8-6 prior adoption, the person or entity who places the child for
8-7 adoption shall file the report with the bureau [department], which
8-8 shall retain the copies for 99 years from the date of the adoption.
8-9 SECTION 10. Section 162.008(b), Family Code, is amended to
8-10 read as follows:
8-11 (b) A petition for adoption may not be granted until the
8-12 following documents have been filed:
8-13 (1) a copy of the health, social, educational, and
8-14 genetic history report signed by the child's adoptive parents; and
8-15 (2) if the report is required to be submitted to the
8-16 bureau of vital statistics under [department by] Section
8-17 162.006(e), a certificate from the bureau [department]
8-18 acknowledging receipt of the report.
8-19 SECTION 11. Sections 162.018(a)-(c), Family Code, are
8-20 amended to read as follows:
8-21 (a) The adoptive parents are entitled to receive copies of
8-22 the records and other information relating to the history of the
8-23 child maintained by the department, licensed child-placing agency,
8-24 bureau of vital statistics, person, or entity placing the child for
8-25 adoption.
8-26 (b) The adoptive parents and the adopted child, after the
8-27 child is an adult, are entitled to receive copies of the records
9-1 that have been edited to protect the identity of [the biological
9-2 parents and] any [other] person, including the child's birth
9-3 parents, whose identity is confidential and other information
9-4 relating to the history of the child maintained by the department,
9-5 licensed child-placing agency, bureau, person, or entity placing
9-6 the child for adoption.
9-7 (c) It is the duty of the person or entity placing the child
9-8 for adoption to edit the records and information to protect the
9-9 identity of the birth [biological] parents and any other person
9-10 whose identity is confidential, unless this information is already
9-11 known to the adoptive parents or readily available through other
9-12 sources, including the court records of a suit to terminate the
9-13 parent-child relationship under Chapter 161.
9-14 SECTION 12. Section 162.304(e), Family Code, is amended to
9-15 read as follows:
9-16 (e) If the child is eligible for an adoption subsidy under
9-17 federal law [receiving supplemental security income from the
9-18 federal government], the state may pay the subsidy regardless of
9-19 whether the state is the managing conservator for the child.
9-20 SECTION 13. Section 261.101(d), Family Code, is amended to
9-21 read as follows:
9-22 (d) Unless waived in writing by the person making the
9-23 report, the [The] identity of an individual making a report under
9-24 this chapter is confidential and may be disclosed only:
9-25 (1) as provided by [on the order of a court rendered
9-26 under] Section 261.201; or
9-27 (2) to a law enforcement officer for the purposes of
10-1 conducting a criminal investigation of the report.
10-2 SECTION 14. Section 261.201, Family Code, is amended by
10-3 amending Subsections (b)-(d) and adding Subsection (h) to read as
10-4 follows:
10-5 (b) A court may order the disclosure of information that is
10-6 confidential under this section if:
10-7 (1) a motion has been filed with the court requesting
10-8 the release of the information;
10-9 (2) a notice of hearing has been served on the
10-10 investigating agency and all other interested parties; and
10-11 (3) after hearing and an in camera review of the
10-12 requested information, the court determines that the disclosure of
10-13 the requested information is:
10-14 (A) essential to the administration of justice;
10-15 and
10-16 (B) not likely to endanger the life or safety
10-17 of:
10-18 (i) a child who is the subject of the
10-19 report of alleged or suspected abuse or neglect;
10-20 (ii) a person who makes a report of
10-21 alleged or suspected abuse or neglect; or
10-22 (iii) any other person who participates in
10-23 an investigation of reported abuse or neglect or who provides care
10-24 for the child.
10-25 (c) In addition to Subsection (b), a court, on its own
10-26 motion, may order disclosure of information that is confidential
10-27 under this section if:
11-1 (1) the order is rendered at a hearing for which all
11-2 parties have been given notice;
11-3 (2) the court finds that disclosure of the information
11-4 is:
11-5 (A) essential to the administration of justice;
11-6 and
11-7 (B) not likely to endanger the life or safety
11-8 of:
11-9 (i) a child who is the subject of the
11-10 report of alleged or suspected abuse or neglect;
11-11 (ii) a person who makes a report of
11-12 alleged or suspected abuse or neglect; or
11-13 (iii) any other person who participates in
11-14 an investigation of reported abuse or neglect or who provides care
11-15 for the child; and
11-16 (3) the order is reduced to writing or made on the
11-17 record in open court.
11-18 (d) The adoptive parents of a child who was the subject of
11-19 an investigation and an adult who was the subject of an
11-20 investigation as a child are entitled to examine and make copies of
11-21 any report, record, working paper, or other information in the
11-22 possession, custody, or control of the state that pertains to the
11-23 history of the child. The department may edit the documents to
11-24 protect the identity of the biological parents and any other person
11-25 whose identity is confidential, unless this information is already
11-26 known to the adoptive parents or readily available through other
11-27 sources, including the court records of a suit to terminate the
12-1 parent-child relationship under Chapter 161.
12-2 (h) This section does not apply to an investigation of child
12-3 abuse or neglect in a home or facility regulated under Chapter 42,
12-4 Human Resources Code.
12-5 SECTION 15. Section 261.301(b), Family Code, is amended to
12-6 read as follows:
12-7 (b) A state agency shall investigate a report that alleges
12-8 abuse or neglect occurred in a facility operated, licensed,
12-9 certified, or registered by that agency as provided by Subchapter
12-10 E. In conducting an investigation for a facility operated,
12-11 licensed, certified, registered, or listed by the department, the
12-12 department shall perform the investigation as provided by:
12-13 (1) Subchapter E; and
12-14 (2) the Human Resources Code.
12-15 SECTION 16. Section 261.303, Family Code, is amended by
12-16 amending Subsection (c) and adding Subsection (d) to read as
12-17 follows:
12-18 (c) If a parent or person responsible for the child's care
12-19 does not consent to release of the child's prior medical,
12-20 psychological, or psychiatric records or to a medical,
12-21 psychological, or psychiatric examination of the child that is
12-22 requested by the department or designated agency, the court having
12-23 family law jurisdiction shall, for good cause shown, order the
12-24 records to be released or the examination to be made at the times
12-25 and places designated by the court.
12-26 (d) A person, including a medical facility, that makes a
12-27 report under Subchapter B shall release to the department or
13-1 designated agency, as part of the required report under Section
13-2 261.103, records that directly relate to the suspected abuse or
13-3 neglect without requiring parental consent or a court order.
13-4 SECTION 17. Sections 261.305(a)-(c), Family Code, are
13-5 amended to read as follows:
13-6 (a) An investigation may include an inquiry into the
13-7 possibility that [the child,] a parent[,] or a person responsible
13-8 for the care of a [the] child who is the subject of a report under
13-9 Subchapter B has a history of medical or mental illness.
13-10 (b) If the parent or person [responsible for the care of the
13-11 child] does not consent to an examination or allow the department
13-12 or designated agency to have access to medical or mental health
13-13 records requested by the department or agency, the court having
13-14 family law jurisdiction, for good cause shown, shall order the
13-15 examination to be made or that the department or agency be
13-16 permitted to have access to the records under terms and conditions
13-17 prescribed by the court.
13-18 (c) If the court determines that the parent or person
13-19 [responsible for the care of the child] is indigent, the court
13-20 shall appoint an attorney to represent the parent or person
13-21 [responsible for the child] at the hearing [to obtain medical or
13-22 mental health records]. The fees for the appointed attorney shall
13-23 be paid as provided by Chapter 107 [the department or designated
13-24 agency].
13-25 SECTION 18. Section 261.405, Family Code, as amended by
13-26 Chapters 162 and 1374, Acts of the 75th Legislature, Regular
13-27 Session, 1997, is reenacted to read as follows:
14-1 Sec. 261.405. INVESTIGATIONS IN PRE-ADJUDICATION AND
14-2 POST-ADJUDICATION SECURE JUVENILE FACILITIES. A report of alleged
14-3 abuse or neglect in a public or private juvenile pre-adjudication
14-4 secure detention facility, including hold-over facilities, or
14-5 public or private juvenile post-adjudication secure correctional
14-6 facility, except for a facility operated solely for children
14-7 committed to the Texas Youth Commission, shall be made to a local
14-8 law enforcement agency for investigation. The local law
14-9 enforcement agency shall immediately notify the Texas Juvenile
14-10 Probation Commission of any report the agency receives.
14-11 SECTION 19. Section 261.406(b), Family Code, is amended to
14-12 read as follows:
14-13 (b) The department shall send a written report of the
14-14 department's investigation, as appropriate, to the Texas Education
14-15 Agency, the agency responsible for teacher certification, the local
14-16 school board or the school's [local] governing body, and the school
14-17 principal or director, unless the principal or director is alleged
14-18 to have committed the abuse or neglect, for appropriate action. On
14-19 request, the department shall provide a copy of the report of
14-20 investigation to the parent, managing conservator, or legal
14-21 guardian of a child who is the subject of the investigation and to
14-22 the person alleged to have committed the abuse or neglect. The
14-23 report of investigation shall be edited to protect the identity of
14-24 the persons who made the report of abuse or neglect [or provided
14-25 information for the report of abuse or neglect]. Section
14-26 261.201(b) applies to the release of confidential information
14-27 relating to the investigation of a report of abuse or neglect under
15-1 this section and to the identity of the person who made the report
15-2 of abuse or neglect.
15-3 SECTION 20. The heading of Chapter 262, Family Code, is
15-4 amended to read as follows:
15-5 CHAPTER 262. [EMERGENCY] PROCEDURES IN SUIT BY GOVERNMENTAL
15-6 ENTITY TO PROTECT HEALTH AND SAFETY OF CHILD
15-7 SECTION 21. Section 262.001, Family Code, is amended to read
15-8 as follows:
15-9 Sec. 262.001. AUTHORIZED ACTIONS BY GOVERNMENTAL ENTITY.
15-10 (a) A governmental entity with an interest in the child may file a
15-11 suit affecting the parent-child relationship requesting an
15-12 [emergency] order or take possession of a child without a court
15-13 order as provided by this chapter.
15-14 (b) In determining the reasonable efforts that are required
15-15 to be made with respect to preventing or eliminating the need to
15-16 remove a child from the child's home or to make it possible to
15-17 return a child to the child's home, the child's health and safety
15-18 is the paramount concern.
15-19 SECTION 22. Section 262.002, Family Code, is amended to read
15-20 as follows:
15-21 Sec. 262.002. JURISDICTION [FOR EMERGENCY PROCEDURES]. A
15-22 suit brought by a governmental entity requesting an [emergency]
15-23 order under this chapter may be filed in a court with jurisdiction
15-24 to hear the suit in the county in which the child is found.
15-25 SECTION 23. Section 262.007(c), Family Code, is amended to
15-26 read as follows:
15-27 (c) If a person entitled to possession of the child is not
16-1 immediately available to take possession of the child, the law
16-2 enforcement officer shall deliver the child to the Department of
16-3 Protective and Regulatory Services. Until a person entitled to
16-4 possession of the child takes possession of the child, the
16-5 department may, without a court order, retain possession of the
16-6 child not longer than five [14] days after the date the child is
16-7 delivered to the department. While the department retains
16-8 possession of a child under this subsection, the department may
16-9 place the child in foster home care. If a parent or other person
16-10 entitled to possession of the child does not take possession of the
16-11 child before the 6th [15th] day after the date the child is
16-12 delivered to the department, the department shall proceed under
16-13 this chapter as if the law enforcement officer took possession of
16-14 the child under Section 262.104.
16-15 SECTION 24. The heading for Subchapter B, Chapter 262,
16-16 Family Code, is amended to read as follows:
16-17 SUBCHAPTER B. TAKING POSSESSION OF CHILD [IN EMERGENCY]
16-18 SECTION 25. Section 262.101, Family Code, is amended to read
16-19 as follows:
16-20 Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
16-21 CHILD. An original suit [A petition or affidavit] filed by a
16-22 governmental entity that requests [requesting] permission to take
16-23 possession of a child without prior notice and a hearing must [in
16-24 an emergency shall] be supported by an affidavit sworn to by a
16-25 person with personal knowledge and stating [shall state] facts
16-26 sufficient to satisfy a person of ordinary prudence and caution
16-27 that:
17-1 (1) there is an immediate danger to the physical
17-2 health or safety of the child or the child has been a victim of
17-3 neglect or sexual abuse and that continuation in the home would be
17-4 contrary to the child's welfare; and
17-5 (2) there is no time, consistent with the physical
17-6 health or safety of the child, for an adversary hearing or to make
17-7 reasonable efforts to prevent or eliminate the need for the removal
17-8 of the child.
17-9 SECTION 26. Section 262.102(a), Family Code, is amended to
17-10 read as follows:
17-11 (a) Before a court may, without prior notice and a hearing,
17-12 issue a temporary restraining order or attachment of a child in a
17-13 suit [requesting an emergency order] brought by a governmental
17-14 entity, the court must find that:
17-15 (1) there is an immediate danger to the physical
17-16 health or safety of the child or the child has been a victim of
17-17 neglect or sexual abuse and that continuation in the home would be
17-18 contrary to the child's welfare; and
17-19 (2) there is no time, consistent with the physical
17-20 health or safety of the child and the nature of the emergency, to
17-21 hold an adversary hearing or to make reasonable efforts to prevent
17-22 or eliminate the need for removal of the child.
17-23 SECTION 27. Section 262.106, Family Code, is amended by
17-24 adding Subsection (d) to read as follows:
17-25 (d) For the purpose of determining under Subsection (a) the
17-26 first working day after the date the child is taken into
17-27 possession, the child is considered to have been taken into
18-1 possession by the Department of Protective and Regulatory Services
18-2 on the expiration of the five-day period permitted under Section
18-3 262.007(c) or 262.110(b), as appropriate.
18-4 SECTION 28. Section 262.109(d), Family Code, is amended to
18-5 read as follows:
18-6 (d) The written notice may be waived by the court at the
18-7 initial hearing:
18-8 (1) on a showing that the parents, conservators, or
18-9 other custodians of the child could not be located; or
18-10 (2) for other good cause.
18-11 SECTION 29. Section 262.110, Family Code, is amended to read
18-12 as follows:
18-13 Sec. 262.110. TAKING POSSESSION OF CHILD IN EMERGENCY WITH
18-14 INTENT TO RETURN HOME. (a) An authorized representative of the
18-15 Department of Protective and Regulatory Services, a law enforcement
18-16 officer, or a juvenile probation officer may take temporary
18-17 possession of a child without a court order on discovery of a child
18-18 in a situation of danger to the child's physical health or safety
18-19 when the sole purpose is to deliver the child without unnecessary
18-20 delay to the parent, managing conservator, possessory conservator,
18-21 guardian, caretaker, or custodian who is presently entitled to
18-22 possession of the child.
18-23 (b) Until a parent or other person entitled to possession of
18-24 the child takes possession of the child, the department may retain
18-25 possession of the child without a court order for not more than
18-26 five days. On the expiration of the fifth day, if a parent or
18-27 other person entitled to possession does not take possession of the
19-1 child, the department shall take action under this chapter as if
19-2 the department took possession of the child under Section 262.104.
19-3 (c) The department may place in foster care a child for whom
19-4 the department retains possession under Subsection (b).
19-5 SECTION 30. Subchapter B, Chapter 262, Family Code, is
19-6 amended by adding Section 262.113 to read as follows:
19-7 Sec. 262.113. FILING SUIT WITHOUT TAKING POSSESSION OF
19-8 CHILD. An original suit filed by a governmental entity that
19-9 requests to take possession of a child after notice and a hearing
19-10 must be supported by an affidavit sworn to by a person with
19-11 personal knowledge and stating facts sufficient to satisfy a person
19-12 of ordinary prudence and caution that:
19-13 (1) reasonable efforts have been made to prevent or
19-14 eliminate the need to remove the child from the child's home; and
19-15 (2) allowing the child to remain in the home would be
19-16 contrary to the child's welfare.
19-17 SECTION 31. Section 262.201, Family Code, is amended by
19-18 adding Subsection (g) to read as follows:
19-19 (g) For the purpose of determining under Subsection (a) the
19-20 14th day after the date the child is taken into possession, a child
19-21 is considered to have been taken into possession by the department
19-22 on the expiration of the five-day period permitted under Section
19-23 262.007(c) or 262.110(b), as appropriate.
19-24 SECTION 32. Section 262.2015, Family Code, is amended to
19-25 read as follows:
19-26 Sec. 262.2015. AGGRAVATED CIRCUMSTANCES [ACCELERATED TRIAL
19-27 ON THE MERITS]. (a) The court may waive the requirement of a
20-1 service plan and the requirement to make reasonable efforts to
20-2 return the child to a parent and may accelerate the trial schedule
20-3 to result in a final order for a child under the care of the
20-4 department at an earlier date than provided by Subchapter D,
20-5 Chapter 263, if the court finds that all reasonable efforts have
20-6 been made to return the child to a parent or that the parent has
20-7 subjected the child to aggravated circumstances.
20-8 (b) The court may find under Subsection (a) that a parent
20-9 has subjected the child to aggravated circumstances if:
20-10 (1) the parent abandoned the child without
20-11 identification or a means for identifying the child [orders at the
20-12 conclusion of the full adversary hearing that the child may not be
20-13 placed in the child's home];
20-14 (2) [finds that] the child is a victim of serious
20-15 bodily injury or sexual abuse inflicted by the parent or by another
20-16 person with the parent's consent; [and]
20-17 (3) the parent [finds that there is probable cause to
20-18 believe that a party to the suit] has engaged in conduct against
20-19 the child or against another child of the parent that would
20-20 constitute an offense under the following provisions of the Penal
20-21 Code:
20-22 (A) Section 19.02 (murder);
20-23 (B) Section 19.03 (capital murder);
20-24 (C) Section 19.04 (manslaughter);
20-25 (D) Section 21.11 (indecency with a child);
20-26 (E) [(B)] Section 22.011 (sexual assault);
20-27 (F) [(C)] Section 22.02 (aggravated assault);
21-1 (G) [(D)] Section 22.021 (aggravated sexual
21-2 assault);
21-3 (H) [(E)] Section 22.04 (injury to a child,
21-4 elderly individual, or disabled individual);
21-5 (I) [(F)] Section 22.041 (abandoning or
21-6 endangering child);
21-7 (J) [(G)] Section 25.02 (prohibited sexual
21-8 conduct);
21-9 (K) [(H)] Section 43.25 (sexual performance by a
21-10 child); or
21-11 (L) [(I)] Section 43.26 (possession or promotion
21-12 of child pornography);
21-13 (4) the parent voluntarily left the child alone or in
21-14 the possession of another person not the parent of the child for at
21-15 least six months without expressing an intent to return and without
21-16 providing adequate support for the child; or
21-17 (5) the parent's parental rights with regard to
21-18 another child have been involuntarily terminated based on a finding
21-19 that the parent's conduct violated Section 161.001(1)(D) or (E) or
21-20 a substantially equivalent provision of another state's law.
21-21 (c) On finding that reasonable efforts to prevent or
21-22 eliminate the need to remove the child or to make it possible for
21-23 the child to safely return to the child's home are not required,
21-24 the court shall at any time before the 30th day after the date of
21-25 the finding, conduct an initial permanency hearing under Subchapter
21-26 D, Chapter 263. Separate notice of the permanency plan is not
21-27 required but may be given with a notice of a hearing under this
22-1 section.
22-2 (d) The Department of Protective and Regulatory Services
22-3 shall make reasonable efforts to finalize the permanent placement
22-4 of a child for whom the court has made the finding described by
22-5 Subsection (c). The court shall set the suit for trial on the
22-6 merits as required by Subchapter D, Chapter 263, in order to
22-7 facilitate final placement of the child.
22-8 SECTION 33. Section 262.203, Family Code, is amended to read
22-9 as follows:
22-10 Sec. 262.203. TRANSFER OF SUIT. (a) On the motion of a
22-11 party or the court's own motion, if applicable, the court that
22-12 rendered the temporary order shall [transfer the suit] in
22-13 accordance with procedures provided by Chapter 155:
22-14 (1) transfer the suit to the court of continuing,
22-15 exclusive jurisdiction, if any; [or]
22-16 (2) if grounds exist for mandatory transfer from the
22-17 court of continuing, exclusive jurisdiction under Section 155.201,
22-18 order transfer of the suit from that court; or
22-19 (3) if grounds exist for transfer based on improper
22-20 venue, order transfer of the suit [if there is no court of
22-21 continuing jurisdiction,] to the court having venue of the suit
22-22 [affecting the parent-child relationship] under Chapter 103.
22-23 (b) Notwithstanding Section 155.204, a motion to transfer
22-24 relating to [under this section is timely if made at any time after
22-25 the date] a suit [was] filed under this chapter may be filed
22-26 separately from the petition and is timely if filed while the case
22-27 is pending.
23-1 (c) Notwithstanding Sections 6.407 and 103.002, a court
23-2 exercising jurisdiction under this chapter is not required to
23-3 transfer the suit to a court in which a parent has filed a suit
23-4 for dissolution of marriage before a final order for the protection
23-5 of the child has been rendered under Subchapter E, Chapter 263.
23-6 SECTION 34. Subchapter C, Chapter 262, Family Code, is
23-7 amended by adding Section 262.205 to read as follows:
23-8 Sec. 262.205. HEARING WHEN CHILD NOT IN POSSESSION OF
23-9 GOVERNMENTAL ENTITY. (a) In a suit requesting possession of a
23-10 child after notice and hearing, the court may render a temporary
23-11 restraining order as provided by Section 105.001. The suit shall
23-12 be promptly set for hearing.
23-13 (b) After the hearing, the court may grant the request to
23-14 remove the child from the parent, managing conservator, possessory
23-15 conservator, guardian, caretaker, or custodian entitled to
23-16 possession of the child if the court finds sufficient evidence to
23-17 satisfy a person of ordinary prudence and caution that:
23-18 (1) reasonable efforts have been made to prevent or
23-19 eliminate the need to remove the child from the child's home; and
23-20 (2) allowing the child to remain in the home would be
23-21 contrary to the child's welfare.
23-22 (c) If the court orders removal of the child from the
23-23 child's home, the court shall:
23-24 (1) issue an appropriate temporary order under Chapter
23-25 105; and
23-26 (2) inform each parent in open court that parental and
23-27 custodial rights and duties may be subject to restriction or
24-1 termination unless the parent is willing and able to provide a safe
24-2 environment for the child.
24-3 (d) If citation by publication is required for a parent or
24-4 alleged or probable father in an action under this chapter because
24-5 the location of the person is unknown, the court may render a
24-6 temporary order without regard to whether notice of the citation
24-7 has been published.
24-8 (e) Unless it is not in the best interest of the child, the
24-9 court shall place a child who has been removed under this section
24-10 with:
24-11 (1) the child's noncustodial parent; or
24-12 (2) another relative of the child if placement with
24-13 the noncustodial parent is inappropriate.
24-14 (f) If the court finds that the child requires protection
24-15 from family violence by a member of the child's family or
24-16 household, the court shall render a protective order for the child
24-17 under Title 4.
24-18 SECTION 35. Section 263.101, Family Code, is amended to read
24-19 as follows:
24-20 Sec. 263.101. DEPARTMENT TO FILE SERVICE PLAN. Not later
24-21 than the 45th day after the date the court renders a temporary
24-22 order appointing the department as temporary managing conservator
24-23 of a child [of the conclusion of a full adversary hearing] under
24-24 Chapter 262, the department or other agency appointed as the
24-25 managing conservator of a child shall file a service plan.
24-26 SECTION 36. Section 263.105(a), Family Code, is amended to
24-27 read as follows:
25-1 (a) The service plan currently in effect shall be filed with
25-2 the court [along with the next required status report].
25-3 SECTION 37. Section 263.201, Family Code, is amended to read
25-4 as follows:
25-5 Sec. 263.201. STATUS HEARING; TIME. (a) Not later than the
25-6 60th day after the date the court renders a temporary order
25-7 appointing the department as temporary managing conservator of a
25-8 child, the court shall hold a status hearing to review the child's
25-9 status and the service [permanency] plan developed for the child.
25-10 (b) A status hearing is not required if the court holds an
25-11 initial permanency hearing under Section 262.2015 before the date a
25-12 status hearing is required by this section.
25-13 SECTION 38. Section 263.202, Family Code, is amended by
25-14 adding Subsection (d) to read as follows:
25-15 (d) If a service plan with respect to a parent has not been
25-16 filed with the court, the court shall consider whether to waive the
25-17 service plan under Section 262.2015.
25-18 SECTION 39. Section 263.306, Family Code, is amended to read
25-19 as follows:
25-20 Sec. 263.306. PERMANENCY HEARINGS: PROCEDURE. (a) At each
25-21 permanency hearing the court shall:
25-22 (1) identify all persons or parties present at the
25-23 hearing or those given notice but failing to appear;
25-24 (2) review the efforts of the department or another
25-25 agency in:
25-26 (A) attempting to locate all necessary persons;
25-27 (B) requesting service of citation; and
26-1 (C) obtaining the assistance of a parent in
26-2 providing information necessary to locate an absent parent;
26-3 (3) return the child to the parent or parents if the
26-4 child's parent or parents are willing and able to provide the child
26-5 with a safe environment and the return of the child is in the
26-6 child's best interest;
26-7 (4) place the child with a person or entity, other
26-8 than a parent, entitled to service under Chapter 102 if the person
26-9 or entity is willing and able to provide the child with a safe
26-10 environment and the placement [return] of the child is in the
26-11 child's best interest;
26-12 (5) evaluate the department's efforts to identify
26-13 relatives who could provide the child with a safe environment, if
26-14 the child is not returned to a parent or another person or entity
26-15 entitled to service under Chapter 102;
26-16 (6) evaluate the parties' compliance with temporary
26-17 orders and the service plan;
26-18 (7) determine whether:
26-19 (A) the child continues to need substitute care;
26-20 (B) the child's current placement is appropriate
26-21 for meeting the child's needs; and
26-22 (C) other plans or services are needed to meet
26-23 the child's special needs or circumstances;
26-24 (8) if the child is placed in institutional care,
26-25 determine whether efforts have been made to ensure placement of the
26-26 child in the least restrictive environment consistent with the best
26-27 interest and special needs of the child;
27-1 (9) if the child is 16 years of age or older, order
27-2 services that are needed to assist the child in making the
27-3 transition from substitute care to independent living if the
27-4 services are available in the community;
27-5 (10) determine plans, services, and further temporary
27-6 orders necessary to ensure that a final order is rendered before
27-7 the date for dismissal of the suit under this chapter; and
27-8 (11) determine the date for dismissal of the suit
27-9 under this chapter and give notice in open court to all parties of:
27-10 (A) the dismissal date;
27-11 (B) the date of the next permanency hearing; and
27-12 (C) the date the suit is set for trial.
27-13 (b) The court shall also review the service plan, permanency
27-14 report, and other information submitted at the hearing to:
27-15 (1) determine:
27-16 (A) the safety of the child;
27-17 (B) the continuing necessity and appropriateness
27-18 of the placement;
27-19 (C) the extent of compliance with the case plan;
27-20 and
27-21 (D) the extent of progress that has been made
27-22 toward alleviating or mitigating the causes necessitating the
27-23 placement of the child in foster care; and
27-24 (2) project a likely date by which the child may be
27-25 returned to and safely maintained in the child's home, placed for
27-26 adoption, or placed in permanent managing conservatorship.
27-27 SECTION 40. Section 263.402, Family Code, is amended to read
28-1 as follows:
28-2 Sec. 263.402. MONITORED RETURN OF CHILD TO PARENT [OR
28-3 PLACEMENT WITH RELATIVE]. (a) Notwithstanding Section 263.401,
28-4 the court may retain jurisdiction and not dismiss the suit or
28-5 render a final order as required by that section if the court
28-6 renders a temporary order that:
28-7 (1) finds that retaining jurisdiction under this
28-8 section is in the best interest of the child;
28-9 (2) orders the department to return the child to the
28-10 child's parent [or to place the child with a relative of the
28-11 child];
28-12 (3) orders the department to continue to serve as
28-13 temporary managing conservator of the child; and
28-14 (4) orders the department to monitor the child's
28-15 placement to ensure that the child is in a safe environment.
28-16 (b) If the court renders an order under this section, the
28-17 court shall:
28-18 (1) include in the order specific findings regarding
28-19 the grounds for the order; and
28-20 (2) schedule a new date, not later than the 180th day
28-21 after the date the temporary order is rendered, for dismissal of
28-22 the suit.
28-23 (c) If a child placed with a parent [or relative] under this
28-24 section must be moved from that home by the department before the
28-25 dismissal of the suit or the rendering of a final order, the court
28-26 shall, at the time of the move, schedule a new date for dismissal
28-27 of the suit. The new dismissal date may not be later than the
29-1 original dismissal date established under Section 263.401 or the
29-2 180th day after the date the child is moved under this subsection,
29-3 whichever date is later.
29-4 (d) If the court renders an order under this section, the
29-5 court must include in the order specific findings regarding the
29-6 grounds for the order.
29-7 SECTION 41. Section 264.201, Family Code, is amended by
29-8 adding Subsection (e) to read as follows:
29-9 (e) The department may not provide and a court may not order
29-10 the department to provide supervision for visitation in a child
29-11 custody matter unless the department is a petitioner or intervener
29-12 in the underlying suit.
29-13 SECTION 42. Section 154.053, Civil Practice and Remedies
29-14 Code, is amended by adding Subsection (d) to read as follows:
29-15 (d) Each participant, including the impartial third party,
29-16 to an alternative dispute resolution procedure is subject to the
29-17 requirements of Subchapter B, Chapter 261, Family Code, and
29-18 Subchapter C, Chapter 48, Human Resources Code.
29-19 SECTION 43. Section 154.073, Civil Practice and Remedies
29-20 Code, is amended by amending Subsection (a) and adding Subsection
29-21 (e) to read as follows:
29-22 (a) Except as provided by Subsections (c), [and] (d), and
29-23 (e), a communication relating to the subject matter of any civil or
29-24 criminal dispute made by a participant in an alternative dispute
29-25 resolution procedure, whether before or after the institution of
29-26 formal judicial proceedings, is confidential, is not subject to
29-27 disclosure, and may not be used as evidence against the participant
30-1 in any judicial or administrative proceeding.
30-2 (e) This section does not affect the duty to report abuse or
30-3 neglect under Subchapter B, Chapter 261, Family Code, and abuse,
30-4 exploitation, or neglect under Subchapter C, Chapter 48, Human
30-5 Resources Code.
30-6 SECTION 44. Sections 263.003 and 263.004, Family Code, are
30-7 repealed.
30-8 SECTION 45. (a) This Act takes effect September 1, 1999.
30-9 (b) The change in law made by this Act to Chapter 262,
30-10 Family Code, applies only to a suit affecting the parent-child
30-11 relationship filed requesting an order to take possession of a
30-12 child or to a child taken into possession without a court order on
30-13 or after that date. A suit filed before the effective date of this
30-14 Act or a child taken into possession before the effective date of
30-15 this Act is governed by the law in effect on the date the suit was
30-16 filed or the child was taken into possession, as appropriate, and
30-17 the former law is continued in effect for that purpose.
30-18 SECTION 46. The importance of this legislation and the
30-19 crowded condition of the calendars in both houses create an
30-20 emergency and an imperative public necessity that the
30-21 constitutional rule requiring bills to be read on three several
30-22 days in each house be suspended, and this rule is hereby suspended.