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                                  * * * * *