1-1 By: Morrison (Senate Sponsor - Harris) H.B. No. 1566
1-2 (In the Senate - Received from the House May 3, 2001;
1-3 May 4, 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 authority of a governmental entity to take
1-9 emergency possession of a child and to the services provided for
1-10 the child.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 262.101, Family Code, is amended to read
1-13 as follows:
1-14 Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
1-15 CHILD. An original suit filed by a governmental entity that
1-16 requests permission to take possession of a child without prior
1-17 notice and a hearing must be supported by an affidavit sworn to by
1-18 a person with personal knowledge and stating facts sufficient to
1-19 satisfy a person of ordinary prudence and caution that:
1-20 (1) there is an immediate danger to the physical
1-21 health or safety of the child or the child has been a victim of
1-22 neglect or sexual abuse and that continuation in the home would be
1-23 contrary to the child's welfare; [and]
1-24 (2) there is no time, consistent with the physical
1-25 health or safety of the child, for a full [an] adversary hearing
1-26 under Subchapter C; and
1-27 (3) [or to make] reasonable efforts, consistent with
1-28 the circumstances and providing for the safety of the child, were
1-29 made to prevent or eliminate the need for the removal of the child.
1-30 SECTION 2. Section 262.102(a), Family Code, is amended to
1-31 read as follows:
1-32 (a) Before a court may, without prior notice and a hearing,
1-33 issue a temporary restraining order or attachment of a child in a
1-34 suit brought by a governmental entity, the court must find that:
1-35 (1) there is an immediate danger to the physical
1-36 health or safety of the child or the child has been a victim of
1-37 neglect or sexual abuse and that continuation in the home would be
1-38 contrary to the child's welfare; [and]
1-39 (2) there is no time, consistent with the physical
1-40 health or safety of the child and the nature of the emergency, for
1-41 a full [to hold an] adversary hearing under Subchapter C; and
1-42 (3) [or to make] reasonable efforts, consistent with
1-43 the circumstances and providing for the safety of the child, were
1-44 made to prevent or eliminate the need for removal of the child.
1-45 SECTION 3. Section 262.107(a), Family Code, is amended to
1-46 read as follows:
1-47 (a) The court shall order the return of the child at the
1-48 initial hearing regarding a child taken in possession without a
1-49 court order by a governmental entity unless the court is satisfied
1-50 that:
1-51 (1) there is a continuing danger to the physical
1-52 health or safety of the child if the child is returned to the
1-53 parent, managing conservator, possessory conservator, guardian,
1-54 caretaker, or custodian who is presently entitled to possession of
1-55 the child or the evidence shows that the child has been the victim
1-56 of sexual abuse on one or more occasions and that there is a
1-57 substantial risk that the child will be the victim of sexual abuse
1-58 in the future; [and]
1-59 (2) continuation of the child in the home would be
1-60 contrary to the child's welfare; and
1-61 (3) reasonable efforts, consistent with the
1-62 circumstances and providing for the safety of the child, were made
1-63 to prevent or eliminate the need for removal of the child [the
1-64 nature of the emergency and the continuing danger to the welfare of
2-1 the child make efforts to allow the child to remain with or return
2-2 to the person entitled to possession of the child impossible or
2-3 unreasonable].
2-4 SECTION 4. Section 262.201(b), Family Code, is amended to
2-5 read as follows:
2-6 (b) At the conclusion of the full adversary hearing, the
2-7 court shall order the return of the child to the parent, managing
2-8 conservator, possessory conservator, guardian, caretaker, or
2-9 custodian entitled to possession unless the court finds sufficient
2-10 evidence to satisfy a person of ordinary prudence and caution that:
2-11 (1) there was a danger to the physical health or
2-12 safety of the child which was caused by an act or failure to act of
2-13 the person entitled to possession and for the child to remain in
2-14 the home is contrary to the welfare of the child;
2-15 (2) the urgent need for protection required the
2-16 immediate removal of the child and reasonable [makes] efforts,
2-17 consistent with the circumstances and providing for the safety of
2-18 the child, were made to eliminate or prevent the child's removal
2-19 [impossible or unreasonable]; and
2-20 (3) [notwithstanding] reasonable efforts have been
2-21 made to [eliminate the need for the child's removal and] enable the
2-22 child to return home, but there is a substantial risk of a
2-23 continuing danger if the child is returned home.
2-24 SECTION 5. Sections 262.2015(a)-(c), Family Code, are amended
2-25 to read as follows:
2-26 (a) The court may waive the requirement of a service plan
2-27 and the requirement to make reasonable efforts to return the child
2-28 to a parent and may accelerate the trial schedule to result in a
2-29 final order for a child under the care of the department at an
2-30 earlier date than provided by Subchapter D, Chapter 263, if the
2-31 court finds that [all reasonable efforts have been made to return
2-32 the child to a parent or that] the parent has subjected the child
2-33 to aggravated circumstances.
2-34 (b) The court may find under Subsection (a) that a parent
2-35 has subjected the child to aggravated circumstances if:
2-36 (1) the parent abandoned the child without
2-37 identification or a means for identifying the child;
2-38 (2) the child is a victim of serious bodily injury or
2-39 sexual abuse inflicted by the parent or by another person with the
2-40 parent's consent;
2-41 (3) the parent has engaged in conduct against the
2-42 child [or against another child of the parent] that would
2-43 constitute an offense under the following provisions of the Penal
2-44 Code:
2-45 (A) Section 19.02 (murder);
2-46 (B) Section 19.03 (capital murder);
2-47 (C) Section 19.04 (manslaughter);
2-48 (D) Section 21.11 (indecency with a child);
2-49 (E) Section 22.011 (sexual assault);
2-50 (F) Section 22.02 (aggravated assault);
2-51 (G) Section 22.021 (aggravated sexual assault);
2-52 (H) Section 22.04 (injury to a child, elderly
2-53 individual, or disabled individual);
2-54 (I) Section 22.041 (abandoning or endangering
2-55 child);
2-56 (J) Section 25.02 (prohibited sexual conduct);
2-57 (K) Section 43.25 (sexual performance by a
2-58 child); or
2-59 (L) Section 43.26 (possession or promotion of
2-60 child pornography);
2-61 (4) the parent voluntarily left the child alone or in
2-62 the possession of another person not the parent of the child for at
2-63 least six months without expressing an intent to return and without
2-64 providing adequate support for the child; [or]
2-65 (5) the parent's parental rights with regard to
2-66 another child have been involuntarily terminated based on a finding
2-67 that the parent's conduct violated Section 161.001(1)(D) or (E) or
2-68 a substantially equivalent provision of another state's law; or
2-69 (6) the parent has been convicted for:
3-1 (A) the murder of another child of the parent
3-2 and the offense would have been an offense under 18 U.S.C. Section
3-3 1111(a) if the offense had occurred in the special maritime or
3-4 territorial jurisdiction of the United States;
3-5 (B) the voluntary manslaughter of another child
3-6 of the parent and the offense would have been an offense under 18
3-7 U.S.C. Section 1112(a) if the offense had occurred in the special
3-8 maritime or territorial jurisdiction of the United States;
3-9 (C) aiding or abetting, attempting, conspiring,
3-10 or soliciting an offense under Subdivision (A) or (B); or
3-11 (D) the felony assault of the child or another
3-12 child of the parent that resulted in serious bodily injury to the
3-13 child or another child of the parent.
3-14 (c) On finding that reasonable efforts to [prevent or
3-15 eliminate the need to remove the child or to] make it possible for
3-16 the child to safely return to the child's home are not required,
3-17 the court shall at any time before the 30th day after the date of
3-18 the finding, conduct an initial permanency hearing under Subchapter
3-19 D, Chapter 263. Separate notice of the permanency plan is not
3-20 required but may be given with a notice of a hearing under this
3-21 section.
3-22 SECTION 6. Section 263.301(b), Family Code, is amended to
3-23 read as follows:
3-24 (b) The following persons are entitled to at least 10 days'
3-25 notice of a permanency hearing and are entitled to present evidence
3-26 and be heard at the hearing:
3-27 (1) the department;
3-28 (2) the foster parent, preadoptive parent, relative of
3-29 the child providing care, or director of the group home or
3-30 institution where the child is residing;
3-31 (3) each parent of the child;
3-32 (4) the managing conservator or guardian of the child;
3-33 (5) an attorney ad litem appointed for the child under
3-34 Chapter 107;
3-35 (6) a volunteer advocate appointed for the child under
3-36 Chapter 107; and
3-37 (7) any other person or agency named by the court to
3-38 have an interest in the child's welfare.
3-39 SECTION 7. Section 263.306, Family Code, is amended to read
3-40 as follows:
3-41 Sec. 263.306. PERMANENCY HEARINGS; PROCEDURE. (a) At each
3-42 permanency hearing the court shall:
3-43 (1) identify all persons or parties present at the
3-44 hearing or those given notice but failing to appear;
3-45 (2) review the efforts of the department or another
3-46 agency in:
3-47 (A) attempting to locate all necessary persons;
3-48 (B) requesting service of citation; and
3-49 (C) obtaining the assistance of a parent in
3-50 providing information necessary to locate an absent parent;
3-51 (3) return the child to the parent or parents if the
3-52 child's parent or parents are willing and able to provide the child
3-53 with a safe environment and the return of the child is in the
3-54 child's best interest;
3-55 (4) place the child with a person or entity, other
3-56 than a parent, entitled to service under Chapter 102 if the person
3-57 or entity is willing and able to provide the child with a safe
3-58 environment and the placement of the child is in the child's best
3-59 interest;
3-60 (5) evaluate the department's efforts to identify
3-61 relatives who could provide the child with a safe environment, if
3-62 the child is not returned to a parent or another person or entity
3-63 entitled to service under Chapter 102;
3-64 (6) evaluate the parties' compliance with temporary
3-65 orders and the service plan;
3-66 (7) determine whether:
3-67 (A) the child continues to need substitute care;
3-68 (B) the child's current placement is appropriate
3-69 for meeting the child's needs, including with respect to a child
4-1 who has been placed outside of the state, whether that placement
4-2 continues to be in the best interest of the child; and
4-3 (C) other plans or services are needed to meet
4-4 the child's special needs or circumstances;
4-5 (8) if the child is placed in institutional care,
4-6 determine whether efforts have been made to ensure placement of the
4-7 child in the least restrictive environment consistent with the best
4-8 interest and special needs of the child;
4-9 (9) if the child is 16 years of age or older, order
4-10 services that are needed to assist the child in making the
4-11 transition from substitute care to independent living if the
4-12 services are available in the community;
4-13 (10) determine plans, services, and further temporary
4-14 orders necessary to ensure that a final order is rendered before
4-15 the date for dismissal of the suit under this chapter; and
4-16 (11) determine the date for dismissal of the suit
4-17 under this chapter and give notice in open court to all parties of:
4-18 (A) the dismissal date;
4-19 (B) the date of the next permanency hearing; and
4-20 (C) the date the suit is set for trial.
4-21 (b) The court shall also review the service plan, permanency
4-22 report, and other information submitted at the hearing to:
4-23 (1) determine:
4-24 (A) the safety of the child;
4-25 (B) the continuing necessity and appropriateness
4-26 of the placement;
4-27 (C) the extent of compliance with the case plan;
4-28 [and]
4-29 (D) the extent of progress that has been made
4-30 toward alleviating or mitigating the causes necessitating the
4-31 placement of the child in foster care; and
4-32 (E) whether the department has made reasonable
4-33 efforts to finalize the permanency plan that is in effect for the
4-34 child; and
4-35 (2) project a likely date by which the child may be
4-36 returned to and safely maintained in the child's home, placed for
4-37 adoption, or placed in permanent managing conservatorship.
4-38 SECTION 8. Section 263.501(d), Family Code, is amended to
4-39 read as follows:
4-40 (d) The following are entitled to not less than 10 days'
4-41 notice of a placement review hearing:
4-42 (1) the department;
4-43 (2) the foster parent, preadoptive parent, relative of
4-44 the child providing care, or director of the group home or
4-45 institution in which the child is residing;
4-46 (3) each parent of the child;
4-47 (4) each possessory conservator or guardian of the
4-48 child;
4-49 (5) the child's attorney ad litem and volunteer
4-50 advocate, if the appointments were not dismissed in the final
4-51 order; and
4-52 (6) any other person or agency named by the court as
4-53 having an interest in the child's welfare.
4-54 SECTION 9. Section 263.503, Family Code, is amended to read
4-55 as follows:
4-56 Sec. 263.503. PLACEMENT REVIEW HEARINGS; PROCEDURE. At each
4-57 placement review hearing, the court shall determine whether:
4-58 (1) the child's current placement is necessary, safe,
4-59 and appropriate for meeting the child's needs, including with
4-60 respect to a child placed outside of the state, whether the
4-61 placement continues to be appropriate and in the best interest of
4-62 the child;
4-63 (2) efforts have been made to ensure placement of the
4-64 child in the least restrictive environment consistent with the best
4-65 interest and special needs of the child if the child is placed in
4-66 institutional care;
4-67 (3) the services that are needed to assist a child who
4-68 is at least 16 years of age in making the transition from
4-69 substitute care to independent living are available in the
5-1 community;
5-2 (4) other plans or services are needed to meet the
5-3 child's special needs or circumstances; [and]
5-4 (5) the department or authorized agency has exercised
5-5 due diligence in attempting to place the child for adoption if
5-6 parental rights to the child have been terminated and the child is
5-7 eligible for adoption; and
5-8 (6) the department or authorized agency has made
5-9 reasonable efforts to finalize the permanency plan that is in
5-10 effect for the child.
5-11 SECTION 10. Section 262.111, Family Code, is repealed.
5-12 SECTION 11. (a) This Act takes effect September 1, 2001.
5-13 (b) The change in law made by this Act to Chapter 262,
5-14 Family Code, applies only to a suit affecting the parent-child
5-15 relationship requesting an order to take possession of a child
5-16 filed on or after the effective date of this Act or to a child
5-17 taken into possession without a court order on or after that date.
5-18 A suit filed before the effective date of this Act or a child taken
5-19 into possession before the effective date of this Act is governed
5-20 by the law in effect on the date the suit was filed or the child
5-21 was taken into possession, as appropriate, and the former law is
5-22 continued in effect for that purpose.
5-23 (c) The change in law made by this Act to Chapter 263,
5-24 Family Code, applies to a child for whom the Department of
5-25 Protective and Regulatory Services is providing permanency planning
5-26 on or after the effective date of this Act.
5-27 * * * * *