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.