By Morrison H.B. No. 1566
77R4970 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of a governmental entity to take
1-3 emergency possession of a child and to the services provided for
1-4 the child.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 262.101, Family Code, is amended to read
1-7 as follows:
1-8 Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
1-9 CHILD. An original suit filed by a governmental entity that
1-10 requests permission to take possession of a child without prior
1-11 notice and a hearing must be supported by an affidavit sworn to by
1-12 a person with personal knowledge and stating facts sufficient to
1-13 satisfy a person of ordinary prudence and caution that:
1-14 (1) there is an immediate danger to the physical
1-15 health or safety of the child or the child has been a victim of
1-16 neglect or sexual abuse and that continuation in the home would be
1-17 contrary to the child's welfare; [and]
1-18 (2) there is no time, consistent with the physical
1-19 health or safety of the child, for a full [an] adversary hearing
1-20 under Subchapter C; and
1-21 (3) [or to make] reasonable efforts, consistent with
1-22 the circumstances and providing for the safety of the child, were
1-23 made to prevent or eliminate the need for the removal of the child.
1-24 SECTION 2. Section 262.102(a), Family Code, is amended to
2-1 read as follows:
2-2 (a) Before a court may, without prior notice and a hearing,
2-3 issue a temporary restraining order or attachment of a child in a
2-4 suit brought by a governmental entity, the court must find that:
2-5 (1) there is an immediate danger to the physical
2-6 health or safety of the child or the child has been a victim of
2-7 neglect or sexual abuse and that continuation in the home would be
2-8 contrary to the child's welfare; [and]
2-9 (2) there is no time, consistent with the physical
2-10 health or safety of the child and the nature of the emergency, for
2-11 a full [to hold an] adversary hearing under Subchapter C; and
2-12 (3) [or to make] reasonable efforts, consistent with
2-13 the circumstances and providing for the safety of the child, were
2-14 made to prevent or eliminate the need for removal of the child.
2-15 SECTION 3. Section 262.107(a), Family Code, is amended to
2-16 read as follows:
2-17 (a) The court shall order the return of the child at the
2-18 initial hearing regarding a child taken in possession without a
2-19 court order by a governmental entity unless the court is satisfied
2-20 that:
2-21 (1) there is a continuing danger to the physical
2-22 health or safety of the child if the child is returned to the
2-23 parent, managing conservator, possessory conservator, guardian,
2-24 caretaker, or custodian who is presently entitled to possession of
2-25 the child or the evidence shows that the child has been the victim
2-26 of sexual abuse on one or more occasions and that there is a
2-27 substantial risk that the child will be the victim of sexual abuse
3-1 in the future; [and]
3-2 (2) returning the child to the child's home would be
3-3 contrary to the child's welfare; and
3-4 (3) reasonable efforts, consistent with the
3-5 circumstances and providing for the safety of the child, were made
3-6 to prevent or eliminate the need for removal of the child [the
3-7 nature of the emergency and the continuing danger to the welfare of
3-8 the child make efforts to allow the child to remain with or return
3-9 to the person entitled to possession of the child impossible or
3-10 unreasonable].
3-11 SECTION 4. Section 262.201(b), Family Code, is amended to
3-12 read as follows:
3-13 (b) At the conclusion of the full adversary hearing, the
3-14 court shall order the return of the child to the parent, managing
3-15 conservator, possessory conservator, guardian, caretaker, or
3-16 custodian entitled to possession unless the court finds sufficient
3-17 evidence to satisfy a person of ordinary prudence and caution that:
3-18 (1) there was a danger to the physical health or
3-19 safety of the child which was caused by an act or failure to act of
3-20 the person entitled to possession and for the child to remain in
3-21 the home is contrary to the welfare of the child;
3-22 (2) the urgent need for protection required the
3-23 immediate removal of the child and reasonable [makes] efforts,
3-24 consistent with the circumstances and providing for the safety of
3-25 the child, were made to eliminate or prevent the child's removal
3-26 [impossible or unreasonable]; and
3-27 (3) [notwithstanding] reasonable efforts have been
4-1 made to [eliminate the need for the child's removal and] enable the
4-2 child to return home, but there is a substantial risk of a
4-3 continuing danger if the child is returned home.
4-4 SECTION 5. Sections 262.2015(a)-(c), Family Code, are amended
4-5 to read as follows:
4-6 (a) The court may waive the requirement of a service plan
4-7 and the requirement to make reasonable efforts to return the child
4-8 to a parent and may accelerate the trial schedule to result in a
4-9 final order for a child under the care of the department at an
4-10 earlier date than provided by Subchapter D, Chapter 263, if the
4-11 court finds that [all reasonable efforts have been made to return
4-12 the child to a parent or that] the parent has subjected the child
4-13 to aggravated circumstances.
4-14 (b) The court may find under Subsection (a) that a parent
4-15 has subjected the child to aggravated circumstances if:
4-16 (1) the parent abandoned the child without
4-17 identification or a means for identifying the child;
4-18 (2) the child is a victim of serious bodily injury or
4-19 sexual abuse inflicted by the parent or by another person with the
4-20 parent's consent;
4-21 (3) the parent has engaged in conduct against the
4-22 child [or against another child of the parent] that would
4-23 constitute an offense under the following provisions of the Penal
4-24 Code:
4-25 (A) Section 19.02 (murder);
4-26 (B) Section 19.03 (capital murder);
4-27 (C) Section 19.04 (manslaughter);
5-1 (D) Section 21.11 (indecency with a child);
5-2 (E) Section 22.011 (sexual assault);
5-3 (F) Section 22.02 (aggravated assault);
5-4 (G) Section 22.021 (aggravated sexual assault);
5-5 (H) Section 22.04 (injury to a child, elderly
5-6 individual, or disabled individual);
5-7 (I) Section 22.041 (abandoning or endangering
5-8 child);
5-9 (J) Section 25.02 (prohibited sexual conduct);
5-10 (K) Section 43.25 (sexual performance by a
5-11 child); or
5-12 (L) Section 43.26 (possession or promotion of
5-13 child pornography);
5-14 (4) the parent voluntarily left the child alone or in
5-15 the possession of another person not the parent of the child for at
5-16 least six months without expressing an intent to return and without
5-17 providing adequate support for the child; [or]
5-18 (5) the parent's parental rights with regard to
5-19 another child have been involuntarily terminated based on a finding
5-20 that the parent's conduct violated Section 161.001(1)(D) or (E) or
5-21 a substantially equivalent provision of another state's law; or
5-22 (6) the parent has been convicted for:
5-23 (A) the murder of another child of the parent
5-24 and the offense would have been an offense under 18 U.S.C. Section
5-25 1111(a) if the offense had occurred in the special maritime or
5-26 territorial jurisdiction of the United States;
5-27 (B) the voluntary manslaughter of another child
6-1 of the parent and the offense would have been an offense under 18
6-2 U.S.C. Section 1112(a) if the offense had occurred in the special
6-3 maritime or territorial jurisdiction of the United States;
6-4 (C) aiding or abetting, attempting, conspiring,
6-5 or soliciting an offense under Subdivision (A) or (B); or
6-6 (D) the felony assault of the child or another
6-7 child of the parent that resulted in serious bodily injury to the
6-8 child or another child of the parent.
6-9 (c) On finding that reasonable efforts to [prevent or
6-10 eliminate the need to remove the child or to] make it possible for
6-11 the child to safely return to the child's home are not required,
6-12 the court shall at any time before the 30th day after the date of
6-13 the finding, conduct an initial permanency hearing under Subchapter
6-14 D, Chapter 263. Separate notice of the permanency plan is not
6-15 required but may be given with a notice of a hearing under this
6-16 section.
6-17 SECTION 6. Section 263.301(b), Family Code, is amended to
6-18 read as follows:
6-19 (b) The following persons are entitled to at least 10 days'
6-20 notice of a permanency hearing and are entitled to present evidence
6-21 and be heard at the hearing:
6-22 (1) the department;
6-23 (2) the foster parent, preadoptive parent, relative of
6-24 the child providing care, or director of the group home or
6-25 institution where the child is residing;
6-26 (3) each parent of the child;
6-27 (4) the managing conservator or guardian of the child;
7-1 (5) an attorney ad litem appointed for the child under
7-2 Chapter 107;
7-3 (6) a volunteer advocate appointed for the child under
7-4 Chapter 107; and
7-5 (7) any other person or agency named by the court to
7-6 have an interest in the child's welfare.
7-7 SECTION 7. Section 263.306, Family Code, is amended to read
7-8 as follows:
7-9 Sec. 263.306. PERMANENCY HEARINGS; PROCEDURE. (a) At each
7-10 permanency hearing the court shall:
7-11 (1) identify all persons or parties present at the
7-12 hearing or those given notice but failing to appear;
7-13 (2) review the efforts of the department or another
7-14 agency in:
7-15 (A) attempting to locate all necessary persons;
7-16 (B) requesting service of citation; and
7-17 (C) obtaining the assistance of a parent in
7-18 providing information necessary to locate an absent parent;
7-19 (3) return the child to the parent or parents if the
7-20 child's parent or parents are willing and able to provide the child
7-21 with a safe environment and the return of the child is in the
7-22 child's best interest;
7-23 (4) place the child with a person or entity, other
7-24 than a parent, entitled to service under Chapter 102 if the person
7-25 or entity is willing and able to provide the child with a safe
7-26 environment and the placement of the child is in the child's best
7-27 interest;
8-1 (5) evaluate the department's efforts to identify
8-2 relatives who could provide the child with a safe environment, if
8-3 the child is not returned to a parent or another person or entity
8-4 entitled to service under Chapter 102;
8-5 (6) evaluate the parties' compliance with temporary
8-6 orders and the service plan;
8-7 (7) determine whether:
8-8 (A) the child continues to need substitute care;
8-9 (B) the child's current placement is appropriate
8-10 for meeting the child's needs, including with respect to a child
8-11 who has been placed outside of the state, whether that placement
8-12 continues to be in the best interest of the child; and
8-13 (C) other plans or services are needed to meet
8-14 the child's special needs or circumstances;
8-15 (8) if the child is placed in institutional care,
8-16 determine whether efforts have been made to ensure placement of the
8-17 child in the least restrictive environment consistent with the best
8-18 interest and special needs of the child;
8-19 (9) if the child is 16 years of age or older, order
8-20 services that are needed to assist the child in making the
8-21 transition from substitute care to independent living if the
8-22 services are available in the community;
8-23 (10) determine plans, services, and further temporary
8-24 orders necessary to ensure that a final order is rendered before
8-25 the date for dismissal of the suit under this chapter; and
8-26 (11) determine the date for dismissal of the suit
8-27 under this chapter and give notice in open court to all parties of:
9-1 (A) the dismissal date;
9-2 (B) the date of the next permanency hearing; and
9-3 (C) the date the suit is set for trial.
9-4 (b) The court shall also review the service plan, permanency
9-5 report, and other information submitted at the hearing to:
9-6 (1) determine:
9-7 (A) the safety of the child;
9-8 (B) the continuing necessity and appropriateness
9-9 of the placement;
9-10 (C) the extent of compliance with the case plan;
9-11 [and]
9-12 (D) the extent of progress that has been made
9-13 toward alleviating or mitigating the causes necessitating the
9-14 placement of the child in foster care; and
9-15 (E) whether the department has made reasonable
9-16 efforts to finalize the permanency plan that is in effect for the
9-17 child; and
9-18 (2) project a likely date by which the child may be
9-19 returned to and safely maintained in the child's home, placed for
9-20 adoption, or placed in permanent managing conservatorship.
9-21 SECTION 8. Section 263.501(d), Family Code, is amended to
9-22 read as follows:
9-23 (d) The following are entitled to not less than 10 days'
9-24 notice of a placement review hearing:
9-25 (1) the department;
9-26 (2) the foster parent, preadoptive parent, relative of
9-27 the child providing care, or director of the group home or
10-1 institution in which the child is residing;
10-2 (3) each parent of the child;
10-3 (4) each possessory conservator or guardian of the
10-4 child;
10-5 (5) the child's attorney ad litem and volunteer
10-6 advocate, if the appointments were not dismissed in the final
10-7 order; and
10-8 (6) any other person or agency named by the court as
10-9 having an interest in the child's welfare.
10-10 SECTION 9. Section 263.503, Family Code, is amended to read
10-11 as follows:
10-12 Sec. 263.503. PLACEMENT REVIEW HEARINGS; PROCEDURE. At each
10-13 placement review hearing, the court shall determine whether:
10-14 (1) the child's current placement is necessary, safe,
10-15 and appropriate for meeting the child's needs, including with
10-16 respect to a child placed outside of the state, whether the
10-17 placement continues to be appropriate and in the best interest of
10-18 the child;
10-19 (2) efforts have been made to ensure placement of the
10-20 child in the least restrictive environment consistent with the best
10-21 interest and special needs of the child if the child is placed in
10-22 institutional care;
10-23 (3) the services that are needed to assist a child who
10-24 is at least 16 years of age in making the transition from
10-25 substitute care to independent living are available in the
10-26 community;
10-27 (4) other plans or services are needed to meet the
11-1 child's special needs or circumstances; [and]
11-2 (5) the department or authorized agency has exercised
11-3 due diligence in attempting to place the child for adoption if
11-4 parental rights to the child have been terminated and the child is
11-5 eligible for adoption; and
11-6 (6) the department or authorized agency has made
11-7 reasonable efforts to finalize the permanency plan that is in
11-8 effect for the child.
11-9 SECTION 10. Section 262.111, Family Code, is repealed.
11-10 SECTION 11. (a) This Act takes effect September 1, 2001.
11-11 (b) The change in law made by this Act to Chapter 262,
11-12 Family Code, applies only to a suit affecting the parent-child
11-13 relationship requesting an order to take possession of a child
11-14 filed on or after the effective date of this Act or to a child
11-15 taken into possession without a court order on or after that date.
11-16 A suit filed before the effective date of this Act or a child taken
11-17 into possession before the effective date of this Act is governed
11-18 by the law in effect on the date the suit was filed or the child
11-19 was taken into possession, as appropriate, and the former law is
11-20 continued in effect for that purpose.
11-21 (c) The change in law made by this Act to Chapter 263,
11-22 Family Code, applies to a child for whom the Department of
11-23 Protective and Regulatory Services is providing permanency planning
11-24 on or after the effective date of this Act.