78R2892 KLA-D
By: Hupp H.B. No. 1752
A BILL TO BE ENTITLED
AN ACT
relating to investigations and other procedures with respect to
allegations of child abuse or neglect.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 261.201, Family Code, is amended by
amending Subsections (b) and (c) and adding Subsection (i) to read
as follows:
(b) A court shall [may] order the disclosure of information
that is confidential under this section if:
(1) a motion has been filed with the court requesting
the release of the information;
(2) a notice of hearing has been served on the
investigating agency and all other interested parties; and
(3) after an evidentiary hearing and an in camera
review of the requested information, the court determines that the
disclosure of the requested information is[:
[(A) essential to the administration of justice;
and
[(B)] not likely to endanger the life or safety
of:
(A) [(i)] a child who is the subject of the
report of alleged or suspected abuse or neglect;
(B) [(ii)] a person who makes a report of alleged
or suspected abuse or neglect; or
(C) [(iii)] any other person who participates in
an investigation of reported abuse or neglect or who provides care
for the child.
(c) In addition to Subsection (b), a court, on its own
motion, may order disclosure of information that is confidential
under this section if:
(1) the order is rendered at a hearing for which all
parties have been given notice;
(2) the court finds that disclosure of the information
is[:
[(A) essential to the administration of justice;
and
[(B)] not likely to endanger the life or safety
of:
(A) [(i)] a child who is the subject of the
report of alleged or suspected abuse or neglect;
(B) [(ii)] a person who makes a report of alleged
or suspected abuse or neglect; or
(C) [(iii)] any other person who participates in
an investigation of reported abuse or neglect or who provides care
for the child; and
(3) the order is reduced to writing or made on the
record in open court.
(i) Subsection (b) may not be construed to prevent a person
who makes a report of alleged or suspected abuse or neglect from
suing for injunctive relief as provided by other law.
SECTION 2. Section 261.302, Family Code, is amended by
amending Subsections (a), (c), and (e), and adding Subsection (f)
to read as follows:
(a) The investigation may include:
(1) a visit to the child's home, unless the alleged
abuse or neglect can be confirmed or clearly ruled out without a
home visit; and
(2) an interview with and examination of the subject
child[, which may include a medical, psychological, or psychiatric
examination].
(c) The investigation may include an interview with the
child's parents and an interview with [and medical, psychological,
or psychiatric examination of] any child in the home.
(e) An interview with a child conducted by the investigating
agency or another person under the direction of the investigating
agency [alleged to be a victim of physical abuse or sexual abuse]
shall be audiotaped or videotaped [unless the investigating agency
determines that good cause exists for not audiotaping or
videotaping the interview in accordance with rules of the agency.
Good cause may include, but is not limited to, such considerations
as the age of the child and the nature and seriousness of the
allegations under investigation. Nothing in this subsection shall
be construed as prohibiting the investigating agency from
audiotaping or videotaping an interview of a child on any case for
which such audiotaping or videotaping is not required under this
subsection]. The fact that the investigating agency failed to
audiotape or videotape an interview is admissible at the trial of
the offense that is the subject of the interview. An investigating
agency or another person under the direction of the investigating
agency that conducts an interview with a child under this
subsection shall make a copy of the videotape or audiotape recorded
at the interview available to a parent of the child immediately
after the interview.
(f) An investigation that includes an examination of the
subject child as authorized by Subsection (a)(2) may not include a
medical, psychological, or psychiatric examination of the child
unless:
(1) the child's parent, conservator, or legal guardian
consents in writing to the examination; or
(2) a court orders the examination.
SECTION 3. Section 261.315, Family Code, is amended to read
as follows:
Sec. 261.315. REMOVAL OF CERTAIN INVESTIGATION INFORMATION
FROM RECORDS. (a) At the conclusion of an investigation in which
the department determines that the person alleged to have abused or
neglected a child did not commit abuse or neglect, the department
shall notify the person of that conclusion and shall [of the
person's right to request the department to] remove all information
about the person's alleged role in the abuse or neglect report from
the department's records and all other information related to the
child's family and household, unless the person requests in writing
that the department keep the information in the department's
records.
[(b) On request under Subsection (a) by a person whom the
department has determined did not commit abuse or neglect, the
department shall remove information from the department's records
concerning the person's alleged role in the abuse or neglect
report.]
(c) The board shall adopt rules necessary to administer this
section.
SECTION 4. Subchapter B, Chapter 262, Family Code, is
amended by adding Sections 262.1001 and 262.1002 to read as
follows:
Sec. 262.1001. DESIGNATION OF ALTERNATIVE PLACEMENT OF
CHILD; PREREQUISITES TO TAKING POSSESSION OF CHILD. (a) A
governmental entity that determines after an investigation that a
child should be removed from the child's home shall:
(1) inform the child's parent, conservator, or legal
guardian that the person may designate another person to care for
the child as an alternative to being taken into possession by the
entity preceding the filing of and during the pendency of a suit
affecting the parent-child relationship; and
(2) if a designation is made under Subdivision (1),
place the child in the care of the person designated by the parent,
conservator, or legal guardian, except as provided by Section
262.1002.
(b) A governmental entity may not take possession of a child
with or without a court order unless the governmental entity
complies with the requirements of Subsection (a)(1) and the parent,
conservator, or legal guardian of the child refuses or is unable to
designate a person with whom to place the child.
(c) The right of the parent, conservator, or legal guardian
of the child to designate the person with whom the child is placed
preceding the filing of and during the pendency of a suit affecting
the parent-child relationship continues until the court terminates
the person's parent-child relationship with respect to the child,
appoints a permanent managing conservator of the child, or orders
that the child be returned to the child's home. The parent,
conservator, or legal guardian may make a subsequent designation in
accordance with this section, and the department shall place the
child with the person subsequently designated, if the child is
removed from the care of a person who was previously designated.
(d) A governmental entity that places a child with a person
designated by the child's parent, conservator, or legal guardian as
provided by this section shall:
(1) if the child is being regularly breast-fed,
provide to the child's mother scheduled visitation periods at
appropriate intervals to allow the mother to continue
breast-feeding the child; and
(2) otherwise provide to the child's parent,
conservator, or legal guardian opportunities for supervised
visitation with the child.
(e) At each hearing conducted under this chapter or in a
suit affecting the parent-child relationship filed under this
chapter, the court shall inform the child's parent, conservator, or
legal guardian orally and in writing of that person's right under
this section to designate the person with whom the child is placed.
Sec. 262.1002. PRESUMPTION OF BEST INTEREST. (a) It is a
rebuttable presumption that the placement of a child with a person
designated by the child's parent, conservator, or legal guardian
under this section is in the child's best interest.
(b) The presumption under this section is rebutted if the
court finds that the designated person or another person in the
designated person's household has:
(1) sexually abused a child; or
(2) otherwise abused or neglected a child and that
abuse or neglect caused serious injury to or the death of the child.
(c) If the presumption in this section is rebutted, the
court may:
(1) render a protective order under Title 4 for the
protection of the child, if appropriate, and authorize the
placement of the child with the designated person; or
(2) require that the parent, conservator, or legal
guardian designate a different person with whom to place the child
preceding the filing of and during the pendency of a suit affecting
the parent-child relationship.
SECTION 5. Section 262.101, Family Code, is amended to read
as follows:
Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
CHILD. An original suit filed by a governmental entity that
requests permission to take possession of a child without prior
notice and a hearing must be supported by an affidavit sworn to by a
person with personal knowledge and stating facts sufficient to
satisfy a person of ordinary prudence and caution that:
(1) there is an immediate danger to the physical
health or safety of the child or the child has been a victim of
neglect or sexual abuse and that continuation in the home would be
contrary to the child's welfare;
(2) there is no time, consistent with the physical
health or safety of the child, for a full adversary hearing under
Subchapter C; [and]
(3) reasonable efforts, consistent with the
circumstances and providing for the safety of the child, were made
to prevent or eliminate the need for the removal of the child; and
(4) the parent, conservator, or legal guardian of the
child refuses or is unable to designate a person with whom to place
the child under Section 262.1001.
SECTION 6. Section 262.102(a), Family Code, is amended to
read as follows:
(a) Before a court may, without prior notice and a hearing,
issue a temporary restraining order or attachment of a child in a
suit brought by a governmental entity, the court must find that:
(1) there is an immediate danger to the physical
health or safety of the child or the child has been a victim of
neglect or sexual abuse and that continuation in the home would be
contrary to the child's welfare;
(2) there is no time, consistent with the physical
health or safety of the child and the nature of the emergency, for a
full adversary hearing under Subchapter C; [and]
(3) reasonable efforts, consistent with the
circumstances and providing for the safety of the child, were made
to prevent or eliminate the need for removal of the child; and
(4) the parent, conservator, or legal guardian of the
child refuses or is unable to designate a person with whom to place
the child under Section 262.1001.
SECTION 7. Section 262.104, Family Code, is amended to read
as follows:
Sec. 262.104. TAKING POSSESSION OF A CHILD IN EMERGENCY
WITHOUT A COURT ORDER. If there is no time to obtain a temporary
restraining order or attachment before taking possession of a child
consistent with the health and safety of that child, an authorized
representative of the Department of Protective and Regulatory
Services, a law enforcement officer, or a juvenile probation
officer may take possession of a child without a court order under
the following conditions, only if the parent, conservator, or legal
guardian of the child refuses or is unable to designate a person
with whom to place the child under Section 262.1001 and:
(1) on personal knowledge of facts that would lead a
person of ordinary prudence and caution to believe that there is an
immediate danger to the physical health or safety of the child;
(2) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that there is an immediate danger to the physical health or
safety of the child;
(3) on personal knowledge of facts that would lead a
person of ordinary prudence and caution to believe that the child
has been the victim of sexual abuse;
(4) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that the child has been the victim of sexual abuse; or
(5) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that the parent or person who has possession of the child is
currently using a controlled substance as defined by Chapter 481,
Health and Safety Code, and the use constitutes an immediate danger
to the physical health or safety of the child.
SECTION 8. Subchapter B, Chapter 262, Family Code, is
amended by adding Sections 262.114 and 262.115 to read as follows:
Sec. 262.114. FILING PETITION AFTER PLACING CHILD WITH
DESIGNATED PERSON. (a) A governmental entity that removes a child
from the child's home and places the child with a designated person
in accordance with Section 262.1001 shall, without unnecessary
delay:
(1) file a suit affecting the parent-child
relationship;
(2) request the court to appoint an attorney ad litem
for the child; and
(3) request an initial hearing to be held not later
than the first working day after the date the child was removed from
the child's home.
(b) For purposes of Section 262.201, the child is considered
to have been taken into possession by the governmental entity on the
date the entity removed the child from the child's home.
Sec. 262.115. INITIAL HEARING AFTER PLACING CHILD WITH
DESIGNATED PERSON. (a) The court in which a suit has been filed
after a child has been removed from the child's home and placed with
a designated person in accordance with Section 262.1001 shall hold
an initial hearing on or before the first working day after the date
the child was removed. The court shall render orders that are
necessary to protect the physical health and safety of the child.
If the court is unavailable for a hearing on the first working day,
the hearing shall be held not later than the first working day after
the court becomes available, provided that the hearing is held not
later than the third working day after the date the child was
removed.
(b) The initial hearing may be ex parte and proof may be by
sworn petition or affidavit if a full adversary hearing is not
practicable.
(c) If the initial hearing is not held within the time
required, the child shall be returned to the parent, conservator,
or legal guardian entitled to possession of the child.
SECTION 9. Section 261.201, Family Code, as amended by this
Act, applies only to a motion for the disclosure of confidential
information made on or after the effective date of this Act. A
motion for the disclosure of confidential information made before
the effective date of this Act is governed by the law in effect on
the date the motion was made, and the former law is continued in
effect for that purpose.
SECTION 10. Section 261.302, Family Code, as amended by
this Act, applies only to an investigation of an allegation of child
abuse or neglect initiated on or after the effective date of this
Act. An investigation of an allegation of child abuse or neglect
initiated before the effective date of this Act is governed by the
law in effect on the date the investigation was initiated, and the
former law is continued in effect for that purpose.
SECTION 11. Section 261.315, Family Code, as amended by
this Act, applies to an investigation of an allegation of child
abuse or neglect pending with the Department of Protective and
Regulatory Services on or initiated on or after the effective date
of this Act.
SECTION 12. Sections 262.1001 and 262.1002, Family Code, as
added by this Act, apply only to the removal of a child from the
child's residence that occurs on or after the effective date of this
Act. The removal of a child from the child's residence that
occurred before the effective date of the Act is governed by the law
in effect on the date the child was removed, and the former law is
continued in effect for that purpose.
SECTION 13. Sections 262.101, 262.102, and 262.104, Family
Code, as amended by this Act, apply only to a suit affecting the
parent-child relationship requesting an order to take possession of
a child that is filed or to a child that is taken into possession
without a court order on or after the effective date of this Act. A
suit filed before the effective date of this Act or a child taken
into possession before the effective date of this Act is governed by
the law in effect on the date the suit was filed or the child was
taken into possession, as appropriate, and the former law is
continued in effect for that purpose.
SECTION 14. This Act takes effect September 1, 2003.