1-1 AN ACT
1-2 relating to the emergency possession of and termination of the
1-3 parent-child relationship of certain abandoned children.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 161.001, Family Code, is amended to read
1-6 as follows:
1-7 Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD
1-8 RELATIONSHIP. The court may order termination of the parent-child
1-9 relationship if the court finds by clear and convincing evidence:
1-10 (1) that the parent has:
1-11 (A) voluntarily left the child alone or in the
1-12 possession of another not the parent and expressed an intent not to
1-13 return;
1-14 (B) voluntarily left the child alone or in the
1-15 possession of another not the parent without expressing an intent
1-16 to return, without providing for the adequate support of the child,
1-17 and remained away for a period of at least three months;
1-18 (C) voluntarily left the child alone or in the
1-19 possession of another without providing adequate support of the
1-20 child and remained away for a period of at least six months;
1-21 (D) knowingly placed or knowingly allowed the
1-22 child to remain in conditions or surroundings which endanger the
1-23 physical or emotional well-being of the child;
1-24 (E) engaged in conduct or knowingly placed the
2-1 child with persons who engaged in conduct which endangers the
2-2 physical or emotional well-being of the child;
2-3 (F) failed to support the child in accordance
2-4 with the parent's ability during a period of one year ending within
2-5 six months of the date of the filing of the petition;
2-6 (G) abandoned the child without identifying the
2-7 child or furnishing means of identification, and the child's
2-8 identity cannot be ascertained by the exercise of reasonable
2-9 diligence;
2-10 (H) voluntarily, and with knowledge of the
2-11 pregnancy, abandoned the mother of the child beginning at a time
2-12 during her pregnancy with the child and continuing through the
2-13 birth, failed to provide adequate support or medical care for the
2-14 mother during the period of abandonment before the birth of the
2-15 child, and remained apart from the child or failed to support the
2-16 child since the birth;
2-17 (I) contumaciously refused to submit to a
2-18 reasonable and lawful order of a court under Subchapter D, Chapter
2-19 261;
2-20 (J) been the major cause of:
2-21 (i) the failure of the child to be
2-22 enrolled in school as required by the Education Code; or
2-23 (ii) the child's absence from the child's
2-24 home without the consent of the parents or guardian for a
2-25 substantial length of time or without the intent to return;
2-26 (K) executed before or after the suit is filed
2-27 an unrevoked or irrevocable affidavit of relinquishment of parental
3-1 rights as provided by this chapter;
3-2 (L) been convicted or has been placed on
3-3 community supervision, including deferred adjudication community
3-4 supervision, for being criminally responsible for the death or
3-5 serious injury of a child under the following sections of the Penal
3-6 Code or adjudicated under Title 3 for conduct that caused the death
3-7 or serious injury of a child and that would constitute a violation
3-8 of one of the following Penal Code sections:
3-9 (i) Section 19.02 (murder);
3-10 (ii) Section 19.03 (capital murder);
3-11 (iii) Section 19.04 (manslaughter);
3-12 (iv) Section 21.11 (indecency with a
3-13 child);
3-14 (v) Section 22.01 (assault);
3-15 (vi) Section 22.011 (sexual assault);
3-16 (vii) Section 22.02 (aggravated assault);
3-17 (viii) Section 22.021 (aggravated sexual
3-18 assault);
3-19 (ix) Section 22.04 (injury to a child,
3-20 elderly individual, or disabled individual);
3-21 (x) Section 22.041 (abandoning or
3-22 endangering child);
3-23 (xi) Section 25.02 (prohibited sexual
3-24 conduct);
3-25 (xii) Section 43.25 (sexual performance by
3-26 a child); and
3-27 (xiii) Section 43.26 (possession or
4-1 promotion of child pornography);
4-2 (M) had his or her parent-child relationship
4-3 terminated with respect to another child based on a finding that
4-4 the parent's conduct was in violation of Paragraph (D) or (E) or
4-5 substantially equivalent provisions of the law of another state;
4-6 (N) constructively abandoned the child who has
4-7 been in the permanent or temporary managing conservatorship of the
4-8 Department of Protective and Regulatory Services or an authorized
4-9 agency for not less than six months, and:
4-10 (i) the department or authorized agency
4-11 has made reasonable efforts to return the child to the parent;
4-12 (ii) the parent has not regularly visited
4-13 or maintained significant contact with the child; and
4-14 (iii) the parent has demonstrated an
4-15 inability to provide the child with a safe environment;
4-16 (O) failed to comply with the provisions of a
4-17 court order that specifically established the actions necessary for
4-18 the parent to obtain the return of the child who has been in the
4-19 permanent or temporary managing conservatorship of the Department
4-20 of Protective and Regulatory Services for not less than nine months
4-21 as a result of the child's removal from the parent under Chapter
4-22 262 for the abuse or neglect of the child;
4-23 (P) used a controlled substance, as defined by
4-24 Chapter 481, Health and Safety Code, in a manner that endangered
4-25 the health or safety of the child, and:
4-26 (i) failed to complete a court-ordered
4-27 substance abuse treatment program; or
5-1 (ii) after completion of a court-ordered
5-2 substance abuse treatment program, continued to abuse a controlled
5-3 substance;
5-4 (Q) knowingly engaged in criminal conduct that
5-5 has resulted in the parent's:
5-6 (i) conviction of an offense; and
5-7 (ii) confinement or imprisonment and
5-8 inability to care for the child for not less than two years from
5-9 the date of filing the petition;
5-10 (R) been the cause of the child being born
5-11 addicted to alcohol or a controlled substance, other than a
5-12 controlled substance legally obtained by prescription, as defined
5-13 by Section 261.001; or
5-14 (S) voluntarily delivered the child to a
5-15 designated emergency infant care provider [an emergency medical
5-16 services provider] under Section 262.302 [262.301] without
5-17 expressing an intent to return for the child; and
5-18 (2) that termination is in the best interest of the
5-19 child.
5-20 SECTION 2. Section 262.105, Family Code, is amended to read
5-21 as follows:
5-22 Sec. 262.105. FILING PETITION AFTER TAKING POSSESSION OF
5-23 CHILD IN EMERGENCY. (a) When a child is taken into possession
5-24 without a court order, the person taking the child into possession,
5-25 without unnecessary delay, shall:
5-26 (1) file a suit affecting the parent-child
5-27 relationship;
6-1 (2) request the court to appoint an attorney ad litem
6-2 for the child; and
6-3 (3) request an initial hearing to be held by no later
6-4 than the first working day after the date the child is taken into
6-5 possession.
6-6 (b) If the Department of Protective and Regulatory Services
6-7 files a suit affecting the parent-child relationship required under
6-8 Subsection (a)(1) seeking termination of the parent-child
6-9 relationship, the department shall file the suit not later than the
6-10 45th day after the date the department assumes the care, control,
6-11 and custody of a child under Section 262.303.
6-12 SECTION 3. Section 262.109(d), Family Code, is amended to
6-13 read as follows:
6-14 (d) The written notice may be waived by the court at the
6-15 initial hearing:
6-16 (1) on a showing that:
6-17 (A) the parents, conservators, or other
6-18 custodians of the child could not be located; or
6-19 (B) the department took possession of the child
6-20 under Subchapter D; or
6-21 (2) for other good cause.
6-22 SECTION 4. Subchapter D, Chapter 262, Family Code, is amended
6-23 to read as follows:
6-24 SUBCHAPTER D. EMERGENCY POSSESSION OF
6-25 CERTAIN ABANDONED CHILDREN
6-26 Sec. 262.301. DEFINITIONS. In this chapter:
6-27 (1) "Designated emergency infant care provider" means:
7-1 (A) an emergency medical services provider;
7-2 (B) a hospital; or
7-3 (C) a child-placing agency licensed by the
7-4 Department of Protective and Regulatory Services under Chapter 42,
7-5 Human Resources Code, that:
7-6 (i) agrees to act as a designated
7-7 emergency infant care provider under this subchapter; and
7-8 (ii) has on staff a person who is licensed
7-9 as a registered nurse under Chapter 301, Occupations Code, or who
7-10 provides emergency medical services under Chapter 773, Health and
7-11 Safety Code, and who will examine and provide emergency medical
7-12 services to a child taken into possession by the agency under this
7-13 subchapter.
7-14 (2) "Emergency medical services provider" has the
7-15 meaning assigned that term by Section 773.003, Health and Safety
7-16 Code.
7-17 Sec. 262.302. ACCEPTING POSSESSION OF CERTAIN ABANDONED
7-18 CHILDREN. (a) A designated emergency infant care provider [An
7-19 emergency medical services provider licensed under Chapter 773,
7-20 Health and Safety Code,] shall, without a court order, take
7-21 possession of a child who appears to be 60 [is 30] days old or
7-22 younger if the child is voluntarily delivered to the provider by
7-23 the child's parent and the parent did not express an intent to
7-24 return for the child.
7-25 (b) A designated emergency infant care provider who takes
7-26 possession of a child under this section has no legal duty to
7-27 detain or pursue the parent and may not do so unless the child
8-1 appears to have been abused or neglected. The designated emergency
8-2 infant care provider has no legal duty to ascertain the parent's
8-3 identity and the parent may remain anonymous. However, the parent
8-4 may be given a form for voluntary disclosure of the child's medical
8-5 facts and history.
8-6 (c) A designated emergency infant care provider [An
8-7 emergency medical services provider] who takes possession of a
8-8 child under this section shall perform any act necessary to protect
8-9 the physical health or safety of the child. The designated
8-10 emergency infant care provider is not liable for damages related to
8-11 the provider's taking possession of, examining, or treating the
8-12 child, except for damages related to the provider's negligence.
8-13 Sec. 262.303 [262.302]. NOTIFICATION OF POSSESSION OF
8-14 ABANDONED CHILD. (a) Not later than the close of the first
8-15 business day after the date on which a designated emergency infant
8-16 care provider [an emergency medical services provider] takes
8-17 possession of a child under Section 262.302 [262.301], the provider
8-18 shall notify the Department of Protective and Regulatory Services
8-19 that the provider has taken possession of the child.
8-20 (b) The department shall assume the care, control, and
8-21 custody of the child immediately on receipt of notice under
8-22 Subsection (a).
8-23 Sec. 262.304 [262.303]. FILING PETITION AFTER ACCEPTING
8-24 POSSESSION OF ABANDONED CHILD. A child for whom the Department of
8-25 Protective and Regulatory Services assumes care, control, and
8-26 custody under Section 262.303 [262.302] shall be treated as a child
8-27 taken into possession without a court order, and the department
9-1 shall take action as required by Section 262.105 with regard to the
9-2 child.
9-3 Sec. 262.305. REPORT TO LAW ENFORCEMENT AGENCY;
9-4 INVESTIGATION. (a) Immediately after assuming care, control, and
9-5 custody of a child under Section 262.303, the Department of
9-6 Protective and Regulatory Services shall report the child to
9-7 appropriate state and local law enforcement agencies as a potential
9-8 missing child.
9-9 (b) A law enforcement agency that receives a report under
9-10 Subsection (a) shall investigate whether the child is reported as
9-11 missing.
9-12 Sec. 262.306. NOTICE. Each designated emergency infant care
9-13 provider shall post in a conspicuous location a notice stating that
9-14 the provider is a designated emergency infant care provider
9-15 location and will accept possession of a child in accordance with
9-16 this subchapter.
9-17 Sec. 262.307. REIMBURSEMENT FOR CARE OF ABANDONED CHILD. The
9-18 department shall reimburse a designated emergency infant care
9-19 provider that takes possession of a child under Section 262.302 for
9-20 the cost to the provider of assuming the care, control, and custody
9-21 of the child.
9-22 SECTION 5. Section 263.3025, Family Code, is amended by
9-23 adding Subsection (d) to read as follows:
9-24 (d) In preparing the permanency plan for a child taken into
9-25 possession under Subchapter D, Chapter 262, the department is not
9-26 required to conduct a search for or give preference to the child's
9-27 relatives for purposes of permanent placement if the department
10-1 does not have information concerning the child's identity or the
10-2 identities of the child's parents.
10-3 SECTION 6. Subchapter E, Chapter 263, Family Code, is
10-4 amended by adding Section 263.405 to read as follows:
10-5 Sec. 263.405. FINAL ORDER APPOINTING DEPARTMENT AS MANAGING
10-6 CONSERVATOR OF CERTAIN ABANDONED CHILDREN; TERMINATION OF PARENTAL
10-7 RIGHTS. (a) In a suit to terminate the parent-child relationship,
10-8 there is a rebuttable presumption that a parent who delivers a
10-9 child to a designated emergency infant care provider in accordance
10-10 with Subchapter D, Chapter 262, consents to the termination of
10-11 parental rights with regard to the child.
10-12 (b) If a person claims to be the parent of a child taken
10-13 into possession under Subchapter D, Chapter 262, before the court
10-14 renders a final order terminating the parental rights of the
10-15 child's parents, the court shall order genetic testing for
10-16 parentage determination unless parentage has previously been
10-17 established. The court shall hold the petition for termination of
10-18 the parent-child relationship in abeyance for a period not to
10-19 exceed 60 days pending the results of the genetic testing.
10-20 SECTION 7. Section 22.041(h), Penal Code, is amended to read
10-21 as follows:
10-22 (h) It is an exception to the application of this section
10-23 [affirmative defense to prosecution under Subsection (b)] that the
10-24 actor voluntarily delivered the child to a designated [an]
10-25 emergency infant care [medical services] provider under Section
10-26 262.302 [262.301], Family Code.
10-27 SECTION 8. (a) The change in law made by Section 263.405,
11-1 Family Code, as added by this Act, applies only to a suit for
11-2 termination of the parent-child relationship filed on or after the
11-3 effective date of this Act.
11-4 (b) A suit for termination of the parent-child relationship
11-5 filed before the effective date of this Act is governed by the law
11-6 in effect on the date the suit was filed, and the former law is
11-7 continued in effect for that purpose.
11-8 SECTION 9. (a) The change in law made by Section 22.041(h),
11-9 Penal Code, as amended by this Act, applies only to an offense that
11-10 is committed on or after the effective date of this Act. For
11-11 purposes of this section, an offense is committed before the
11-12 effective date of this Act if any element of the offense occurs
11-13 before that date.
11-14 (b) An offense committed before the effective date of this
11-15 Act is covered by the law in effect when the offense was committed,
11-16 and the former law is continued in effect for that purpose.
11-17 SECTION 10. This Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 706 was passed by the House on April
10, 2001, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 706 on May 24, 2001, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 706 was passed by the Senate, with
amendments, on May 18, 2001, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor