1-1 By: Goodman, et al. (Senate Sponsor - Harris) H.B. No. 2249
1-2 (In the Senate - Received from the House April 19, 2001;
1-3 April 20, 2001, read first time and referred to Committee on
1-4 Jurisprudence; May 11, 2001, reported favorably by the following
1-5 vote: Yeas 6, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to certain suits affecting the parent-child relationship.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 161.002(b), Family Code, is amended to
1-11 read as follows:
1-12 (b) The rights of an alleged biological father may be
1-13 terminated if:
1-14 (1) after being served with citation, he does not
1-15 respond by timely filing an admission of paternity or a
1-16 counterclaim for paternity under Chapter 160 [prior to the final
1-17 hearing in the suit];
1-18 (2) he has not registered with the paternity registry
1-19 under Subchapter D, Chapter 160, and after the exercise of due
1-20 diligence by the petitioner:
1-21 (A) his identity and location are unknown; or
1-22 (B) his identity is known but he cannot be
1-23 located; or
1-24 (3) he has registered with the paternity registry
1-25 under Subchapter D, Chapter 160, but the petitioner's attempt to
1-26 personally serve citation at the address provided to the registry
1-27 and at any other address for the alleged father known by the
1-28 petitioner has been unsuccessful, despite the due diligence of the
1-29 petitioner.
1-30 SECTION 2. Section 161.003(a), Family Code, is amended to
1-31 read as follows:
1-32 (a) The court may order termination of the parent-child
1-33 relationship in a suit filed by the Department of Protective and
1-34 Regulatory Services if the court finds that:
1-35 (1) the parent has a mental or emotional illness or a
1-36 mental deficiency that renders the parent unable to provide for the
1-37 physical, emotional, and mental needs of the child;
1-38 (2) the illness or deficiency, in all reasonable
1-39 probability, proved by clear and convincing evidence, will continue
1-40 to render the parent unable to provide for the child's needs until
1-41 the 18th birthday of the child;
1-42 (3) the department has been the temporary or sole
1-43 managing conservator of the child of the parent for at least [the]
1-44 six months preceding the date of the hearing on the termination
1-45 held in accordance with Subsection (c) [filing of the petition];
1-46 (4) the department has made reasonable efforts to
1-47 return the child to the parent; and
1-48 (5) the termination is in the best interest of the
1-49 child.
1-50 SECTION 3. Section 161.2011(a), Family Code, is amended to
1-51 read as follows:
1-52 (a) A parent whose rights are subject to termination in a
1-53 suit affecting the parent-child relationship and against whom
1-54 criminal charges are filed that directly relate to the grounds for
1-55 which termination is sought may file a motion requesting a
1-56 continuance of the final trial in the suit until the criminal
1-57 charges are resolved. The court may grant the motion only if the
1-58 court finds that a continuance [shall not proceed to final trial in
1-59 a suit to terminate the parent-child relationship during the time
1-60 that any criminal charges filed against a parent whose rights are
1-61 subject to termination in the suit are pending if the criminal
1-62 charges are directly related to the grounds for which termination
1-63 of the parent's rights are sought unless it determines that it] is
1-64 in the best interest of the child. Notwithstanding any continuance
2-1 granted, the court shall conduct status and permanency hearings
2-2 with respect to the child as required by Chapter 263 and shall
2-3 comply with the dismissal date under Section 263.401.
2-4 SECTION 4. Section 161.203, Family Code, is amended to read
2-5 as follows:
2-6 Sec. 161.203. DISMISSAL OF PETITION. A suit to terminate
2-7 may not be dismissed nor may a nonsuit be taken unless the
2-8 dismissal or nonsuit is approved by the court. The dismissal or
2-9 nonsuit approved by the court is without prejudice.
2-10 SECTION 5. Section 161.204, Family Code, is amended to read
2-11 as follows:
2-12 Sec. 161.204. TERMINATION BASED ON AFFIDAVIT OF WAIVER OF
2-13 INTEREST. In a suit for termination, the court may render an order
2-14 terminating the parent-child relationship [all legal relationships
2-15 and rights which exist or may exist] between a child and a man who
2-16 has signed an affidavit of waiver of interest in the child, if the
2-17 termination is in the best interest of the child.
2-18 SECTION 6. Section 161.205, Family Code, is amended to read
2-19 as follows:
2-20 Sec. 161.205. ORDER DENYING TERMINATION. If the court does
2-21 not order termination of the parent-child relationship, the court
2-22 [it] shall:
2-23 (1) deny [dismiss] the petition; or
2-24 (2) render any order in the best interest of the
2-25 child.
2-26 SECTION 7. Section 263.304, Family Code, is amended to read
2-27 as follows:
2-28 Sec. 263.304. INITIAL PERMANENCY HEARING; TIME. (a) Not
2-29 later than the 180th day after the date the court renders a
2-30 temporary order appointing the department as temporary managing
2-31 conservator of a child, the court shall hold a permanency hearing
2-32 to review the status of, and permanency plan for, the child to
2-33 ensure that a final order consistent with that permanency plan is
2-34 rendered before the date for dismissal of the suit under this
2-35 chapter.
2-36 (b) The court shall set a final hearing under this chapter
2-37 on a date that allows the court to render a final order before the
2-38 date for dismissal of the suit under this chapter. Any party to
2-39 the suit or an attorney ad litem for the child may seek a writ of
2-40 mandamus to compel the court to comply with the duties imposed by
2-41 this subsection.
2-42 SECTION 8. Sections 263.401(b) and (c), Family Code, are
2-43 amended to read as follows:
2-44 (b) The [On or before the time described by Subsection (a)
2-45 for the dismissal of the suit, the] court may retain [extend the
2-46 court's jurisdiction of] the suit on the court's docket for a
2-47 period not to exceed [stated in the extension order, but not longer
2-48 than] 180 days after the time described by Subsection (a), if the
2-49 court finds that [has] continuing [jurisdiction of the suit and]
2-50 the appointment of the department as temporary managing conservator
2-51 is in the best interest of the child. If the court retains the
2-52 suit on the court's docket [grants an extension], the court shall
2-53 render an [extension] order in which the court [must also]:
2-54 (1) schedules [schedule] the new date for dismissal of
2-55 the suit not later than the 180th day after the time described by
2-56 Subsection (a); [and]
2-57 (2) makes [make] further temporary orders for the
2-58 safety and welfare of the child as necessary to avoid further delay
2-59 in resolving the suit; and
2-60 (3) sets a final hearing on a date that allows the
2-61 court to render a final order before the required date for
2-62 dismissal of the suit under this subsection.
2-63 (c) If the court grants an extension but does not[, the
2-64 court shall] render a final order or dismiss the suit on or before
2-65 the required date for dismissal under Subsection (b), the court
2-66 shall dismiss the suit. The court [specified in the extension
2-67 order and] may not grant an additional extension that extends the
2-68 suit beyond the required date for dismissal under Subsection (b).
2-69 SECTION 9. Subchapter E, Chapter 263, Family Code, is amended
3-1 by amending Sections 263.402, 263.403, and 263.404 and adding
3-2 Sections 263.405 and 263.406 to read as follows:
3-3 Sec. 263.402. LIMIT ON EXTENSION; WAIVER. (a) The parties
3-4 to a suit under this chapter may not extend the deadlines set by
3-5 the court under this subchapter by agreement or otherwise.
3-6 (b) A party to a suit under this chapter who fails to make a
3-7 timely motion to dismiss the suit or to make a motion requesting
3-8 the court to render a final order before the deadline for dismissal
3-9 under this subchapter waives the right to object to the court's
3-10 failure to dismiss the suit. A motion to dismiss under this
3-11 subsection is timely if the motion is made before the department
3-12 has introduced all of the department's evidence, other than
3-13 rebuttal evidence, at the trial on the merits.
3-14 Sec. 263.403. MONITORED RETURN OF CHILD TO PARENT. (a)
3-15 Notwithstanding Section 263.401, the court may retain jurisdiction
3-16 and not dismiss the suit or render a final order as required by
3-17 that section if the court renders a temporary order that:
3-18 (1) finds that retaining jurisdiction under this
3-19 section is in the best interest of the child;
3-20 (2) orders the department to return the child to the
3-21 child's parent;
3-22 (3) orders the department to continue to serve as
3-23 temporary managing conservator of the child; and
3-24 (4) orders the department to monitor the child's
3-25 placement to ensure that the child is in a safe environment.
3-26 (b) If the court renders an order under this section, the
3-27 court shall:
3-28 (1) include in the order specific findings regarding
3-29 the grounds for the order; and
3-30 (2) schedule a new date, not later than the 180th day
3-31 after the date the temporary order is rendered, for dismissal of
3-32 the suit.
3-33 (c) If a child placed with a parent under this section must
3-34 be moved from that home by the department before the dismissal of
3-35 the suit or the rendering of a final order, the court shall, at the
3-36 time of the move, schedule a new date for dismissal of the suit.
3-37 The new dismissal date may not be later than the original dismissal
3-38 date established under Section 263.401 or the 180th day after the
3-39 date the child is moved under this subsection, whichever date is
3-40 later.
3-41 (d) If the court renders an order under this section, the
3-42 court must include in the order specific findings regarding the
3-43 grounds for the order.
3-44 Sec. 263.404 [263.403]. FINAL ORDER APPOINTING DEPARTMENT AS
3-45 MANAGING CONSERVATOR WITHOUT TERMINATING PARENTAL RIGHTS. (a) The
3-46 court may render a final order appointing the department as
3-47 managing conservator of the child without terminating the rights of
3-48 the parent of the child if the court finds that:
3-49 (1) appointment of a parent as managing conservator
3-50 would not be in the best interest of the child because the
3-51 appointment would significantly impair the child's physical health
3-52 or emotional development; and
3-53 (2) it would not be in the best interest of the child
3-54 to appoint a relative of the child or another person as managing
3-55 conservator.
3-56 (b) In determining whether the department should be
3-57 appointed as managing conservator of the child without terminating
3-58 the rights of a parent of the child, the court shall take the
3-59 following factors into consideration:
3-60 (1) that the child will reach 18 years of age in not
3-61 less than three years;
3-62 (2) that the child is 12 years of age or older and has
3-63 expressed a strong desire against termination or being adopted;
3-64 (3) that the child has special medical or behavioral
3-65 needs that make adoption of the child unlikely; and
3-66 (4) the needs and desires of the child.
3-67 Sec. 263.405. APPEAL OF FINAL ORDER. (a) An appeal of a
3-68 final order rendered under this subchapter is governed by the rules
3-69 of the supreme court for accelerated appeals in civil cases and the
4-1 procedures provided by this section. The appellate court shall
4-2 render its final order or judgment with the least possible delay.
4-3 (b) Not later than the 15th day after the date a final order
4-4 is signed by the trial judge, a party intending to appeal the order
4-5 must file with the trial court a statement of the point or points
4-6 on which the party intends to appeal. The statement may be
4-7 combined with a motion for a new trial.
4-8 (c) A motion for a new trial, a request for findings of fact
4-9 and conclusions of law, or any other post-trial motion in the trial
4-10 court does not extend the deadline for filing a notice of appeal
4-11 under Rule 26.1(b), Texas Rules of Appellate Procedure, or the
4-12 deadline for filing an affidavit of indigence under Rule 20, Texas
4-13 Rules of Appellate Procedure.
4-14 (d) The trial court shall hold a hearing not later than the
4-15 30th day after the date the final order is signed to determine
4-16 whether:
4-17 (1) a new trial should be granted;
4-18 (2) a party's claim of indigence, if any, should be
4-19 sustained; and
4-20 (3) the appeal is frivolous as provided by Section
4-21 13.003(b), Civil Practice and Remedies Code.
4-22 (e) If a party claims indigency and requests the appointment
4-23 of an attorney, the court shall require the person to file an
4-24 affidavit of indigency and shall hear evidence to determine the
4-25 issue of indigency. If the court does not render a written order
4-26 denying the claim of indigence or requiring the person to pay
4-27 partial costs before the 36th day after the date the final order
4-28 being appealed is signed, the court shall consider the person to be
4-29 indigent and shall appoint counsel to represent the person.
4-30 (f) The appellate record must be filed in the appellate
4-31 court not later than the 60th day after the date the final order is
4-32 signed by the trial judge, unless the trial court, after a hearing,
4-33 grants a new trial or denies a request for a trial court record at
4-34 no cost.
4-35 (g) The appellant may appeal the court's order denying the
4-36 appellant's claim of indigence or the court's finding that the
4-37 appeal is frivolous by filing with the appellate court the
4-38 reporter's record and clerk's record of the hearing held under this
4-39 section, both of which shall be provided without advance payment,
4-40 not later than the 10th day after the date the court makes the
4-41 decision. The appellate court shall review the records and may
4-42 require the parties to file appellate briefs on the issues
4-43 presented, but may not hear oral argument on the issues. The
4-44 appellate court shall render appropriate orders after reviewing the
4-45 records and appellate briefs, if any.
4-46 (h) Except on a showing of good cause, the appellate court
4-47 may not extend the time for filing a record or appellate brief.
4-48 Sec. 263.406 [263.404]. COURT INFORMATION SYSTEM. The Office
4-49 of Court Administration of the Texas Judicial System shall consult
4-50 with the courts presiding over cases brought by the department for
4-51 the protection of children to develop an information system to
4-52 track compliance with the requirements of this subchapter for the
4-53 timely disposition of those cases.
4-54 SECTION 10. (a) Except as provided by Subsection (b) of this
4-55 section, the changes in law made by this Act apply to a pending
4-56 suit affecting the parent-child relationship regardless of whether
4-57 the suit was filed before, on, or after the effective date of this
4-58 Act.
4-59 (b) Section 263.405, Family Code, as added by this Act,
4-60 applies only to an appeal of a final order under Subchapter E,
4-61 Chapter 263, Family Code, as amended by this Act, filed on or after
4-62 the effective date of this Act. An appeal of a final order under
4-63 Subchapter E, Chapter 263, Family Code, filed before the effective
4-64 date of this Act is governed by the law in effect on the date the
4-65 appeal was filed, and the former law is continued in effect for
4-66 that purpose.
4-67 SECTION 11. This Act takes effect September 1, 2001.
4-68 * * * * *