1-1 By: Morrison, Coleman (Senate Sponsor - Truan) H.B. No. 706
1-2 (In the Senate - Received from the House April 11, 2001;
1-3 April 17, 2001, read first time and referred to Committee on
1-4 Jurisprudence; May 11, 2001, reported favorably by the following
1-5 vote: Yeas 5, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the emergency possession of and termination of the
1-9 parent-child relationship of certain abandoned children.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 161.001, Family Code, is amended to read
1-12 as follows:
1-13 Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD
1-14 RELATIONSHIP. The court may order termination of the parent-child
1-15 relationship if the court finds by clear and convincing evidence:
1-16 (1) that the parent has:
1-17 (A) voluntarily left the child alone or in the
1-18 possession of another not the parent and expressed an intent not to
1-19 return;
1-20 (B) voluntarily left the child alone or in the
1-21 possession of another not the parent without expressing an intent
1-22 to return, without providing for the adequate support of the child,
1-23 and remained away for a period of at least three months;
1-24 (C) voluntarily left the child alone or in the
1-25 possession of another without providing adequate support of the
1-26 child and remained away for a period of at least six months;
1-27 (D) knowingly placed or knowingly allowed the
1-28 child to remain in conditions or surroundings which endanger the
1-29 physical or emotional well-being of the child;
1-30 (E) engaged in conduct or knowingly placed the
1-31 child with persons who engaged in conduct which endangers the
1-32 physical or emotional well-being of the child;
1-33 (F) failed to support the child in accordance
1-34 with the parent's ability during a period of one year ending within
1-35 six months of the date of the filing of the petition;
1-36 (G) abandoned the child without identifying the
1-37 child or furnishing means of identification, and the child's
1-38 identity cannot be ascertained by the exercise of reasonable
1-39 diligence;
1-40 (H) voluntarily, and with knowledge of the
1-41 pregnancy, abandoned the mother of the child beginning at a time
1-42 during her pregnancy with the child and continuing through the
1-43 birth, failed to provide adequate support or medical care for the
1-44 mother during the period of abandonment before the birth of the
1-45 child, and remained apart from the child or failed to support the
1-46 child since the birth;
1-47 (I) contumaciously refused to submit to a
1-48 reasonable and lawful order of a court under Subchapter D, Chapter
1-49 261;
1-50 (J) been the major cause of:
1-51 (i) the failure of the child to be
1-52 enrolled in school as required by the Education Code; or
1-53 (ii) the child's absence from the child's
1-54 home without the consent of the parents or guardian for a
1-55 substantial length of time or without the intent to return;
1-56 (K) executed before or after the suit is filed
1-57 an unrevoked or irrevocable affidavit of relinquishment of parental
1-58 rights as provided by this chapter;
1-59 (L) been convicted or has been placed on
1-60 community supervision, including deferred adjudication community
1-61 supervision, for being criminally responsible for the death or
1-62 serious injury of a child under the following sections of the Penal
1-63 Code or adjudicated under Title 3 for conduct that caused the death
1-64 or serious injury of a child and that would constitute a violation
2-1 of one of the following Penal Code sections:
2-2 (i) Section 19.02 (murder);
2-3 (ii) Section 19.03 (capital murder);
2-4 (iii) Section 19.04 (manslaughter);
2-5 (iv) Section 21.11 (indecency with a
2-6 child);
2-7 (v) Section 22.01 (assault);
2-8 (vi) Section 22.011 (sexual assault);
2-9 (vii) Section 22.02 (aggravated assault);
2-10 (viii) Section 22.021 (aggravated sexual
2-11 assault);
2-12 (ix) Section 22.04 (injury to a child,
2-13 elderly individual, or disabled individual);
2-14 (x) Section 22.041 (abandoning or
2-15 endangering child);
2-16 (xi) Section 25.02 (prohibited sexual
2-17 conduct);
2-18 (xii) Section 43.25 (sexual performance by
2-19 a child); and
2-20 (xiii) Section 43.26 (possession or
2-21 promotion of child pornography);
2-22 (M) had his or her parent-child relationship
2-23 terminated with respect to another child based on a finding that
2-24 the parent's conduct was in violation of Paragraph (D) or (E) or
2-25 substantially equivalent provisions of the law of another state;
2-26 (N) constructively abandoned the child who has
2-27 been in the permanent or temporary managing conservatorship of the
2-28 Department of Protective and Regulatory Services or an authorized
2-29 agency for not less than six months, and:
2-30 (i) the department or authorized agency
2-31 has made reasonable efforts to return the child to the parent;
2-32 (ii) the parent has not regularly visited
2-33 or maintained significant contact with the child; and
2-34 (iii) the parent has demonstrated an
2-35 inability to provide the child with a safe environment;
2-36 (O) failed to comply with the provisions of a
2-37 court order that specifically established the actions necessary for
2-38 the parent to obtain the return of the child who has been in the
2-39 permanent or temporary managing conservatorship of the Department
2-40 of Protective and Regulatory Services for not less than nine months
2-41 as a result of the child's removal from the parent under Chapter
2-42 262 for the abuse or neglect of the child;
2-43 (P) used a controlled substance, as defined by
2-44 Chapter 481, Health and Safety Code, in a manner that endangered
2-45 the health or safety of the child, and:
2-46 (i) failed to complete a court-ordered
2-47 substance abuse treatment program; or
2-48 (ii) after completion of a court-ordered
2-49 substance abuse treatment program, continued to abuse a controlled
2-50 substance;
2-51 (Q) knowingly engaged in criminal conduct that
2-52 has resulted in the parent's:
2-53 (i) conviction of an offense; and
2-54 (ii) confinement or imprisonment and
2-55 inability to care for the child for not less than two years from
2-56 the date of filing the petition;
2-57 (R) been the cause of the child being born
2-58 addicted to alcohol or a controlled substance, other than a
2-59 controlled substance legally obtained by prescription, as defined
2-60 by Section 261.001; or
2-61 (S) voluntarily delivered the child to a
2-62 designated emergency infant care provider [an emergency medical
2-63 services provider] under Section 262.302 [262.301] without
2-64 expressing an intent to return for the child; and
2-65 (2) that termination is in the best interest of the
2-66 child.
2-67 SECTION 2. Section 262.105, Family Code, is amended to read
2-68 as follows:
2-69 Sec. 262.105. FILING PETITION AFTER TAKING POSSESSION OF
3-1 CHILD IN EMERGENCY. (a) When a child is taken into possession
3-2 without a court order, the person taking the child into possession,
3-3 without unnecessary delay, shall:
3-4 (1) file a suit affecting the parent-child
3-5 relationship;
3-6 (2) request the court to appoint an attorney ad litem
3-7 for the child; and
3-8 (3) request an initial hearing to be held by no later
3-9 than the first working day after the date the child is taken into
3-10 possession.
3-11 (b) If the Department of Protective and Regulatory Services
3-12 files a suit affecting the parent-child relationship required under
3-13 Subsection (a)(1) seeking termination of the parent-child
3-14 relationship, the department shall file the suit not later than the
3-15 45th day after the date the department assumes the care, control,
3-16 and custody of a child under Section 262.303.
3-17 SECTION 3. Section 262.109(d), Family Code, is amended to
3-18 read as follows:
3-19 (d) The written notice may be waived by the court at the
3-20 initial hearing:
3-21 (1) on a showing that:
3-22 (A) the parents, conservators, or other
3-23 custodians of the child could not be located; or
3-24 (B) the department took possession of the child
3-25 under Subchapter D; or
3-26 (2) for other good cause.
3-27 SECTION 4. Subchapter D, Chapter 262, Family Code, is amended
3-28 to read as follows:
3-29 SUBCHAPTER D. EMERGENCY POSSESSION OF
3-30 CERTAIN ABANDONED CHILDREN
3-31 Sec. 262.301. DEFINITIONS. In this chapter:
3-32 (1) "Designated emergency infant care provider" means:
3-33 (A) an emergency medical services provider;
3-34 (B) a hospital; or
3-35 (C) a child-placing agency licensed by the
3-36 Department of Protective and Regulatory Services under Chapter 42,
3-37 Human Resources Code, that:
3-38 (i) agrees to act as a designated
3-39 emergency infant care provider under this subchapter; and
3-40 (ii) has on staff a person who is licensed
3-41 as a registered nurse under Chapter 301, Occupations Code, or who
3-42 provides emergency medical services under Chapter 773, Health and
3-43 Safety Code, and who will examine and provide emergency medical
3-44 services to a child taken into possession by the agency under this
3-45 subchapter.
3-46 (2) "Emergency medical services provider" has the
3-47 meaning assigned that term by Section 773.003, Health and Safety
3-48 Code.
3-49 Sec. 262.302. ACCEPTING POSSESSION OF CERTAIN ABANDONED
3-50 CHILDREN. (a) A designated emergency infant care provider [An
3-51 emergency medical services provider licensed under Chapter 773,
3-52 Health and Safety Code,] shall, without a court order, take
3-53 possession of a child who appears to be 60 [is 30] days old or
3-54 younger if the child is voluntarily delivered to the provider by
3-55 the child's parent and the parent did not express an intent to
3-56 return for the child.
3-57 (b) Unless the designated emergency infant care provider who
3-58 takes possession of a child under this section suspects the child
3-59 has been abused or neglected, the provider may not pursue the
3-60 parent who delivers the child or prevent the parent from leaving.
3-61 The parent may remain anonymous.
3-62 (c) A designated emergency infant care provider [An
3-63 emergency medical services provider] who takes possession of a
3-64 child under this section shall perform any act necessary to protect
3-65 the physical health or safety of the child. The designated
3-66 emergency infant care provider is immune from civil or criminal
3-67 liability for any injury to the child that results from the
3-68 provider taking possession of the child, except for an injury that
3-69 results from gross negligence.
4-1 Sec. 262.303 [262.302]. NOTIFICATION OF POSSESSION OF
4-2 ABANDONED CHILD. (a) Not later than the close of the first
4-3 business day after the date on which a designated emergency infant
4-4 care provider [an emergency medical services provider] takes
4-5 possession of a child under Section 262.302 [262.301], the provider
4-6 shall notify the Department of Protective and Regulatory Services
4-7 that the provider has taken possession of the child.
4-8 (b) The department shall assume the care, control, and
4-9 custody of the child immediately on receipt of notice under
4-10 Subsection (a).
4-11 Sec. 262.304 [262.303]. FILING PETITION AFTER ACCEPTING
4-12 POSSESSION OF ABANDONED CHILD. A child for whom the Department of
4-13 Protective and Regulatory Services assumes care, control, and
4-14 custody under Section 262.303 [262.302] shall be treated as a child
4-15 taken into possession without a court order, and the department
4-16 shall take action as required by Section 262.105 with regard to the
4-17 child.
4-18 Sec. 262.305. REPORT TO LAW ENFORCEMENT AGENCY;
4-19 INVESTIGATION. (a) Immediately after assuming care, control, and
4-20 custody of a child under Section 262.303, the Department of
4-21 Protective and Regulatory Services shall report the child to
4-22 appropriate state and local law enforcement agencies as a potential
4-23 missing child.
4-24 (b) A law enforcement agency that receives a report under
4-25 Subsection (a) shall investigate whether the child is reported as
4-26 missing.
4-27 Sec. 262.306. NOTICE. Each designated emergency infant care
4-28 provider shall post in a conspicuous location a notice stating that
4-29 the provider is a designated emergency infant care provider
4-30 location and will accept possession of a child in accordance with
4-31 this subchapter.
4-32 Sec. 262.307. REIMBURSEMENT FOR CARE OF ABANDONED CHILD. The
4-33 department shall reimburse a designated emergency infant care
4-34 provider that takes possession of a child under Section 262.302 for
4-35 the cost to the provider of assuming the care, control, and custody
4-36 of the child.
4-37 SECTION 5. Section 263.3025, Family Code, is amended by
4-38 adding Subsection (d) to read as follows:
4-39 (d) In preparing the permanency plan for a child taken into
4-40 possession under Subchapter D, Chapter 262, the department is not
4-41 required to conduct a search for or give preference to the child's
4-42 relatives for purposes of permanent placement if the department
4-43 does not have information concerning the child's identity or the
4-44 identities of the child's parents.
4-45 SECTION 6. Subchapter E, Chapter 263, Family Code, is
4-46 amended by adding Section 263.405 to read as follows:
4-47 Sec. 263.405. FINAL ORDER APPOINTING DEPARTMENT AS MANAGING
4-48 CONSERVATOR OF CERTAIN ABANDONED CHILDREN; TERMINATION OF PARENTAL
4-49 RIGHTS. (a) In a suit to terminate the parent-child relationship,
4-50 there is a rebuttable presumption that a parent who delivers a
4-51 child to a designated emergency infant care provider in accordance
4-52 with Subchapter D, Chapter 262, consents to the termination of
4-53 parental rights with regard to the child.
4-54 (b) If a person claims to be the parent of a child taken
4-55 into possession under Subchapter D, Chapter 262, before the court
4-56 renders a final order terminating the parental rights of the
4-57 child's parents, the court shall order genetic testing for
4-58 parentage determination unless parentage has previously been
4-59 established. The court shall hold the petition for termination of
4-60 the parent-child relationship in abeyance for a period not to
4-61 exceed 60 days pending the results of the genetic testing.
4-62 SECTION 7. Section 22.041(h), Penal Code, is amended to read
4-63 as follows:
4-64 (h) It is an exception to the application of this section
4-65 [affirmative defense to prosecution under Subsection (b)] that the
4-66 actor voluntarily delivered the child to a designated [an]
4-67 emergency infant care [medical services] provider under Section
4-68 262.302 [262.301], Family Code.
4-69 SECTION 8. (a) The change in law made by Section 263.405,
5-1 Family Code, as added by this Act, applies only to a suit for
5-2 termination of the parent-child relationship filed on or after the
5-3 effective date of this Act.
5-4 (b) A suit for termination of the parent-child relationship
5-5 filed before the effective date of this Act is governed by the law
5-6 in effect on the date the suit was filed, and the former law is
5-7 continued in effect for that purpose.
5-8 SECTION 9. (a) The change in law made by Section 22.041(h),
5-9 Penal Code, as amended by this Act, applies only to an offense that
5-10 is committed on or after the effective date of this Act. For
5-11 purposes of this section, an offense is committed before the
5-12 effective date of this Act if any element of the offense occurs
5-13 before that date.
5-14 (b) An offense committed before the effective date of this
5-15 Act is covered by the law in effect when the offense was committed,
5-16 and the former law is continued in effect for that purpose.
5-17 SECTION 10. This Act takes effect September 1, 2001.
5-18 * * * * *