By Goodman H.B. No. 2249
77R5796 KLA-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain suits affecting the parent-child relationship.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 161.002(b), Family Code, is amended to
1-5 read as follows:
1-6 (b) The rights of an alleged biological father may be
1-7 terminated if:
1-8 (1) after being served with citation, he does not
1-9 respond by timely filing an admission of paternity or a
1-10 counterclaim for paternity under Chapter 160 [prior to the final
1-11 hearing in the suit];
1-12 (2) he has not registered with the paternity registry
1-13 under Subchapter D, Chapter 160, and after the exercise of due
1-14 diligence by the petitioner:
1-15 (A) his identity and location are unknown; or
1-16 (B) his identity is known but he cannot be
1-17 located; or
1-18 (3) he has registered with the paternity registry
1-19 under Subchapter D, Chapter 160, but the petitioner's attempt to
1-20 personally serve citation at the address provided to the registry
1-21 and at any other address for the alleged father known by the
1-22 petitioner has been unsuccessful, despite the due diligence of the
1-23 petitioner.
1-24 SECTION 2. Section 161.003(a), Family Code, is amended to
2-1 read as follows:
2-2 (a) The court may order termination of the parent-child
2-3 relationship in a suit filed by the Department of Protective and
2-4 Regulatory Services if the court finds that:
2-5 (1) the parent has a mental or emotional illness or a
2-6 mental deficiency that renders the parent unable to provide for the
2-7 physical, emotional, and mental needs of the child;
2-8 (2) the illness or deficiency, in all reasonable
2-9 probability, proved by clear and convincing evidence, will continue
2-10 to render the parent unable to provide for the child's needs until
2-11 the 18th birthday of the child;
2-12 (3) the department has been the temporary or sole
2-13 managing conservator of the child of the parent for the six months
2-14 preceding the date of the hearing on the termination held in
2-15 accordance with Subsection (c) [filing of the petition];
2-16 (4) the department has made reasonable efforts to
2-17 return the child to the parent; and
2-18 (5) the termination is in the best interest of the
2-19 child.
2-20 SECTION 3. Section 161.004, Family Code, is amended by
2-21 amending Subsection (b) and adding Subsection (c) to read as
2-22 follows:
2-23 (b) If the court dismissed the prior petition requesting
2-24 termination of the parent-child relationship without rendering an
2-25 order denying or granting the petition, a new petition may be
2-26 filed with respect to the child without showing that the
2-27 circumstances described by Subsection (a)(2) are satisfied.
3-1 (c) At a hearing under Subsection (a) [this section], the
3-2 court may consider evidence presented at a previous hearing in a
3-3 suit for termination of the parent-child relationship of the parent
3-4 with respect to the same child. At a hearing on a petition filed
3-5 under Subsection (b), the court may consider evidence of acts and
3-6 omissions that occurred with respect to the same child before or
3-7 after the date of dismissal of the prior petition.
3-8 SECTION 4. Section 161.2011, Family Code, is amended to read
3-9 as follows:
3-10 Sec. 161.2011. CONTINUANCE; ACCESS TO CHILD. (a) Unless the
3-11 court determines that it is in the best interest of the child, the
3-12 [The] court may [shall] not proceed to final trial in a suit to
3-13 terminate the parent-child relationship during the time that any
3-14 criminal charges filed against a parent whose rights are subject to
3-15 termination in the suit are pending if the criminal charges are
3-16 directly related to the grounds for which termination of the
3-17 parent's rights are sought and a continuance is requested by the
3-18 parent against whom the charges are filed [unless it determines
3-19 that it is in the best interest of the child].
3-20 (b) Nothing in this section precludes the court from issuing
3-21 appropriate temporary orders as authorized in this code. The court
3-22 may order that discovery be conducted in the proceeding and the
3-23 court shall hold permanency hearings as required by Chapter 263.
3-24 (c) The court in which a suit to terminate the parent-child
3-25 relationship is pending may render an order denying a parent access
3-26 to a child if the parent is indicted for criminal activity that
3-27 constitutes a ground for terminating the parent-child relationship
4-1 under Section 161.001. The denial of access under this section
4-2 shall continue until [the date the criminal charges for which the
4-3 parent was indicted are resolved and] the court renders a
4-4 subsequent [an] order providing for access to the child by the
4-5 parent.
4-6 (d) The court may not grant a continuance in the final trial
4-7 under Subsection (a) for a period of more than 12 months.
4-8 (e) A continuance granted by the court under this section in
4-9 a proceeding in which the Department of Protective and Regulatory
4-10 Services has been appointed temporary managing conservator of a
4-11 child tolls the time limitations under Chapter 263 for developing a
4-12 service plan and conducting status and permanency hearings with
4-13 respect to the child. On the expiration of the continuance, the
4-14 court shall schedule a new date for dismissal of the suit that is
4-15 not later than the date for dismissal under Section 263.401 or the
4-16 180th day after the date the continuance expires, whichever is
4-17 later.
4-18 SECTION 5. Section 161.203, Family Code, is amended to read
4-19 as follows:
4-20 Sec. 161.203. DISMISSAL OF PETITION. (a) A suit to
4-21 terminate may not be dismissed nor may a nonsuit be taken unless
4-22 the dismissal or nonsuit is approved by the court.
4-23 (b) The court may not dismiss a suit to terminate with
4-24 prejudice unless the court finds sufficient evidence of good cause
4-25 for dismissal with prejudice. The court must include in the order
4-26 dismissing the suit with prejudice specific findings regarding the
4-27 grounds for the order. If the court does not include specific
5-1 findings regarding the grounds for a dismissal with prejudice, the
5-2 suit is considered to be dismissed without prejudice.
5-3 SECTION 6. Section 161.204, Family Code, is amended to read
5-4 as follows:
5-5 Sec. 161.204. TERMINATION BASED ON AFFIDAVIT OF WAIVER OF
5-6 INTEREST. In a suit for termination, the court may render an order
5-7 terminating the parent-child relationship [all legal relationships
5-8 and rights which exist or may exist] between a child and a man who
5-9 has signed an affidavit of waiver of interest in the child, if the
5-10 termination is in the best interest of the child.
5-11 SECTION 7. Section 161.205, Family Code, is amended to read
5-12 as follows:
5-13 Sec. 161.205. ORDER DENYING TERMINATION. If the court does
5-14 not order termination of the parent-child relationship, the court
5-15 [it] shall:
5-16 (1) deny [dismiss] the petition; or
5-17 (2) render any order in the best interest of the
5-18 child.
5-19 SECTION 8. Section 263.304, Family Code, is amended to read
5-20 as follows:
5-21 Sec. 263.304. INITIAL PERMANENCY HEARING; TIME. (a) Not
5-22 later than the 180th day after the date the court renders a
5-23 temporary order appointing the department as temporary managing
5-24 conservator of a child, the court shall hold a permanency hearing
5-25 to review the status of, and permanency plan for, the child to
5-26 ensure that a final order consistent with that permanency plan is
5-27 rendered before the date for dismissal of the suit under this
6-1 chapter.
6-2 (b) The court shall set a final hearing under this chapter
6-3 on a date that allows the court to render a final order before the
6-4 date for dismissal of the suit under this chapter. Any party to
6-5 the suit may enforce this subsection.
6-6 SECTION 9. Sections 263.401(b) and (c), Family Code, are
6-7 amended to read as follows:
6-8 (b) The [On or before the time described by Subsection (a)
6-9 for the dismissal of the suit, the] court may retain [extend the
6-10 court's jurisdiction of] the suit on the court's docket for a
6-11 period not to exceed [stated in the extension order, but not longer
6-12 than] 180 days after the time described by Subsection (a), if the
6-13 court finds that continuing [the court has continuing jurisdiction
6-14 of the suit and] the appointment of the department as temporary
6-15 managing conservator is in the best interest of the child. If the
6-16 court retains the suit on the court's docket [grants an extension],
6-17 the court shall render an [extension] order in which the court
6-18 [must also]:
6-19 (1) schedules [schedule] the new date for dismissal of
6-20 the suit; [and]
6-21 (2) makes [make] further temporary orders for the
6-22 safety and welfare of the child as necessary to avoid further delay
6-23 in resolving the suit; and
6-24 (3) sets a final hearing on a date that allows the
6-25 court to render a final order before the required date for
6-26 dismissal of the suit under this subsection.
6-27 (c) If the court retains a suit on the court's docket under
7-1 Subsection (b) [grants an extension], the court shall render a
7-2 final order or dismiss the suit on or before the date established
7-3 under Subsection (b) [specified in the extension order] and may not
7-4 grant an additional extension that extends the suit beyond the
7-5 period authorized by that subsection. The department, the attorney
7-6 or guardian ad litem for the child who is the subject of the suit,
7-7 or any other party to the suit may enforce this provision by making
7-8 a timely motion for enforcement.
7-9 SECTION 10. Subchapter E, Chapter 263, Family Code, is
7-10 amended by amending Sections 263.402, 263.403, and 263.404, and
7-11 adding Sections 263.405, 263.406, and 263.407 to read as follows:
7-12 Sec. 263.402. EFFECT OF DISMISSAL. (a) The dismissal of a
7-13 suit under this subchapter is without prejudice.
7-14 (b) If the department immediately files a subsequent suit
7-15 under Chapter 262 after the dismissal of a suit under this
7-16 subchapter with respect to the same child, the court may issue
7-17 emergency orders authorizing possession of the child by the
7-18 department only if the court finds that there is:
7-19 (1) a continuing danger to the physical health or
7-20 safety of the child if the child is returned to the parent,
7-21 managing conservator, possessory conservator, guardian, caretaker,
7-22 or custodian; or
7-23 (2) sufficient evidence that the child has been the
7-24 victim of sexual abuse and there is a substantial risk that the
7-25 child will be the victim of a future act of sexual abuse.
7-26 Sec. 263.403. WAIVER; AGREEMENTS FOR EXTENSION. (a) A party
7-27 to a suit under this chapter who fails to make a motion to dismiss
8-1 the suit under Section 263.401 before the evidence in the trial is
8-2 closed waives the right to object on appeal the court's failure to
8-3 dismiss the suit.
8-4 (b) The parties to a suit may agree to extend the deadlines
8-5 under this subchapter. An extension agreement is effective only if
8-6 the agreement:
8-7 (1) is in writing and approved by the attorney and
8-8 guardian ad litem for the child who is the subject of the suit and
8-9 each party to the suit, including the department;
8-10 (2) specifies the date on which the department was
8-11 appointed temporary managing conservator of the child, the date
8-12 under this subchapter on which dismissal of the suit is required,
8-13 and the agreed date for a final hearing in the suit, which may not
8-14 be further extended; and
8-15 (3) states that each party to the suit agrees that the
8-16 extension is in the best interest of the child.
8-17 (c) The court shall reject an extension agreement under
8-18 Subsection (b) and conduct a final hearing in the suit as
8-19 originally scheduled unless the court finds that the extension is
8-20 in the best interest of the child and approves the extension.
8-21 Sec. 263.404. MONITORED RETURN OF CHILD TO PARENT. (a)
8-22 Notwithstanding Section 263.401, the court may retain jurisdiction
8-23 and not dismiss the suit or render a final order as required by
8-24 that section if the court renders a temporary order that:
8-25 (1) finds that retaining jurisdiction under this
8-26 section is in the best interest of the child;
8-27 (2) orders the department to return the child to the
9-1 child's parent;
9-2 (3) orders the department to continue to serve as
9-3 temporary managing conservator of the child; and
9-4 (4) orders the department to monitor the child's
9-5 placement to ensure that the child is in a safe environment.
9-6 (b) If the court renders an order under this section, the
9-7 court shall:
9-8 (1) include in the order specific findings regarding
9-9 the grounds for the order; and
9-10 (2) schedule a new date, not later than the 180th day
9-11 after the date the temporary order is rendered, for dismissal of
9-12 the suit.
9-13 (c) If a child placed with a parent under this section must
9-14 be moved from that home by the department before the dismissal of
9-15 the suit or the rendering of a final order, the court shall, at the
9-16 time of the move, schedule a new date for dismissal of the suit.
9-17 The new dismissal date may not be later than the original dismissal
9-18 date established under Section 263.401 or the 180th day after the
9-19 date the child is moved under this subsection, whichever date is
9-20 later.
9-21 (d) If the court renders an order under this section, the
9-22 court must include in the order specific findings regarding the
9-23 grounds for the order.
9-24 Sec. 263.405 [263.403]. FINAL ORDER APPOINTING DEPARTMENT AS
9-25 MANAGING CONSERVATOR WITHOUT TERMINATING PARENTAL RIGHTS. (a) The
9-26 court may render a final order appointing the department as
9-27 managing conservator of the child without terminating the rights of
10-1 the parent of the child if the court finds that:
10-2 (1) appointment of a parent as managing conservator
10-3 would not be in the best interest of the child because the
10-4 appointment would significantly impair the child's physical health
10-5 or emotional development; and
10-6 (2) it would not be in the best interest of the child
10-7 to appoint a relative of the child or another person as managing
10-8 conservator.
10-9 (b) In determining whether the department should be
10-10 appointed as managing conservator of the child without terminating
10-11 the rights of a parent of the child, the court shall take the
10-12 following factors into consideration:
10-13 (1) that the child will reach 18 years of age in not
10-14 less than three years;
10-15 (2) that the child is 12 years of age or older and has
10-16 expressed a strong desire against termination or being adopted;
10-17 (3) that the child has special medical or behavioral
10-18 needs that make adoption of the child unlikely; and
10-19 (4) the needs and desires of the child.
10-20 Sec. 263.406. APPEAL OF FINAL ORDER FOR CHILD UNDER
10-21 DEPARTMENT CARE. (a) An appeal of a final order rendered under
10-22 this subchapter is governed by the rules of the supreme court for
10-23 accelerated appeals in civil cases and the procedures provided by
10-24 this section. The appellate court shall render its final order or
10-25 judgment with the least possible delay.
10-26 (b) Not later than the 15th day after the date a final order
10-27 is signed by the trial judge, a party intending to appeal the order
11-1 must file with the trial court a statement of the point or points
11-2 on which the party intends to appeal. The statement may be
11-3 combined with a motion for a new trial.
11-4 (c) A motion for new trial, a request for findings of fact
11-5 and conclusions of law, or any other post-trial motion in the trial
11-6 court does not extend the deadline for filing a notice of appeal
11-7 under Rule 26.1(b), Texas Rules of Appellate Procedure, or the
11-8 deadline for filing an affidavit of indigence under Rule 20, Texas
11-9 Rules of Appellate Procedure.
11-10 (d) The trial court shall hold a hearing not later than the
11-11 30th day after the date the final order is signed to determine
11-12 whether:
11-13 (1) a new trial should be granted;
11-14 (2) a party's claim of indigence, if any, should be
11-15 sustained; and
11-16 (3) the appeal is frivolous as provided by Section
11-17 13.003(b), Civil Practice and Remedies Code.
11-18 (e) If a party claims indigency and requests the appointment
11-19 of an attorney, the court shall require the person to file an
11-20 affidavit of indigency and shall hear evidence to determine the
11-21 issue of indigency. If the court does not render a written order
11-22 denying the claim of indigency or requiring the person to pay
11-23 partial costs before the 36th day after the final order being
11-24 appealed is signed, the court shall consider the person to be
11-25 indigent and shall appoint counsel to represent the person.
11-26 (f) The appellate record must be filed in the appellate
11-27 court not later than the 60th day after the date the final order is
12-1 signed by the trial judge, unless the trial court, after a hearing,
12-2 grants a new trial or denies a request for a trial court record at
12-3 no cost.
12-4 (g) If, after a hearing, the trial court denies the
12-5 appellant's claim of indigence or finds the appeal to be frivolous,
12-6 the appellant may appeal the court's decision by filing with the
12-7 appellate court the reporter's record and clerk's record of the
12-8 hearing not later than the 10th day after the date the court makes
12-9 the decision. The appellate court shall review the records and may
12-10 require the parties to file appellate briefs on the issues
12-11 presented, but may not hear oral argument on the issues. The
12-12 appellate court shall render appropriate orders after reviewing the
12-13 records and appellate briefs, if any.
12-14 (h) Except on a showing of good cause, the appellate court
12-15 may not extend the time for filing a record or appellate brief.
12-16 Sec. 263.407 [263.404]. COURT INFORMATION SYSTEM. The Office
12-17 of Court Administration of the Texas Judicial System shall consult
12-18 with the courts presiding over cases brought by the department for
12-19 the protection of children to develop an information system to
12-20 track compliance with the requirements of this subchapter for the
12-21 timely disposition of those cases.
12-22 SECTION 11. (a) Except as provided by Subsection (b) of this
12-23 section, the changes in law made by this Act apply to a suit
12-24 affecting the parent-child relationship filed on or after the
12-25 effective date of this Act. A suit affecting the parent-child
12-26 relationship filed before the effective date of this Act is
12-27 governed by the law in effect on the date the suit was filed, and
13-1 the former law is continued in effect for that purpose.
13-2 (b) Section 263.406, Family Code, as added by this Act,
13-3 applies only to an appeal of a final order under Subchapter E,
13-4 Chapter 263, Family Code, as amended by this Act, filed on or after
13-5 the effective date of this Act. An appeal of a final order under
13-6 Subchapter E, Chapter 263, Family Code, as amended by this Act,
13-7 filed before the effective date of this Act is governed by the law
13-8 in effect on the date the appeal was filed, and the former law is
13-9 continued in effect for that purpose.
13-10 SECTION 12. This Act takes effect September 1, 2001.