80R10046 KKA-F

By: Dutton H.B. No. 3455

A BILL TO BE ENTITLED

AN ACT

relating to investigations and other procedures with respect to allegations of child abuse and neglect.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 261.103, Family Code, is amended by adding Subsection (d) to read as follows:

(d) The department or other entity receiving a report of abuse or neglect shall maintain an audio recording of each report made over the telephone.

SECTION 2. Section 261.302, Family Code, is amended by amending Subsections (a) and (f) and adding Subsections (e-1), (e-2), and (e-3) 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, any other child in the home, or the child's parents which may include a medical, psychological, or psychiatric examination as authorized by Subsection (f).

(e-1) Except as provided by Subsection (e-2), an investigation that includes an examination of the subject child or any other child in the household 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) the department obtains a court order for the medical, psychological, or psychiatric examination.

(e-2) If during the investigation a department investigator believes that a child needs emergency medical attention before a representative of a law enforcement agency is able to arrive, the investigator may obtain medical assistance for the child from emergency medical services personnel, as defined by Section 773.003, Health and Safety Code.

(e-3) This section does not limit the authority of a law enforcement agency to perform its duties under any other law.

(f) A person commits an offense if the person is notified of the time of the transport of a child by the department and the location from which the transport is initiated and the person is present at the location when the transport is initiated and attempts to interfere with the department's investigation. An offense under this subsection is a Class B misdemeanor. It is an exception to the application of this subsection that the department requested the person to be present at the site of the transport. This subsection only applies when the department has taken custody of a child under Section 262.104, an ongoing court-ordered investigation is being conducted, or when the child's parent, conservator, or legal guardian has consented to the transport.

SECTION 3. Section 261.3021, Family Code, is amended to read as follows:

Sec. 261.3021. CASEWORK DOCUMENTATION AND MANAGEMENT. (a) Subject to the appropriation of money for these purposes, the department shall:

(1) identify critical investigation actions that impact child safety and require department caseworkers to document those actions in a child's case file not later than the day after the action occurs;

(2) identify and develop a comprehensive set of casework quality indicators that must be reported in real time to support timely management oversight;

(3) provide department supervisors with access to casework quality indicators and train department supervisors on the use of that information in the daily supervision of caseworkers;

(4) develop a case tracking system that notifies department supervisors and management when a case is not progressing in a timely manner;

(5) use current data reporting systems to provide department supervisors and management with easier access to information; and

(6) train department supervisors and management on the use of data to monitor cases and make decisions.

(b) The department shall record and maintain all interviews and documents pertaining to an investigation, including original notes.

SECTION 4. Section 261.307(a), Family Code, is amended to read as follows:

(a) As soon as possible after initiating an investigation of a parent or other person having legal custody of a child, the department shall provide to the person:

(1) a summary that:

(A) is brief and easily understood;

(B) is written in a language that the person understands, or if the person is illiterate, is read to the person in a language that the person understands; and

(C) contains the following information:

(i) the department's procedures for conducting an investigation of alleged child abuse or neglect, including:

(a) a description of the circumstances under which the department would request to remove the child from the home through the judicial system; and

(b) an explanation that the law requires the department to refer all reports of alleged child abuse or neglect to a law enforcement agency for a separate determination of whether a criminal violation occurred;

(ii) the person's right to file a complaint with the department or to request a review of the findings made by the department in the investigation;

(iii) the person's right to review all records of the investigation unless the review would jeopardize an ongoing criminal investigation or the child's safety;

(iv) the person's right to seek legal counsel;

(v) references to the statutory and regulatory provisions governing child abuse and neglect and how the person may obtain copies of those provisions; and

(vi) the process the person may use to acquire access to the child if the child is removed from the home;

(2) if the department determines that removal of the child may be warranted, a proposed child placement resources form that:

(A) instructs the parent or other person having legal custody of the child to:

(i) complete and return the form to the department or agency; and

(ii) identify in the form three individuals who reside in the state within 100 miles from the child's primary residence who could serve as [be] relative caregivers or designated caregivers, as those terms are defined by Section 264.751, before a suit affecting the parent-child relationship is filed and until the suit is dismissed; and

(B) informs the parent or other person of a location that is available to the parent or other person to submit the information in the form 24 hours a day either in person or by facsimile machine or e-mail; and

(3) an informational manual required by Section 261.3071.

SECTION 5. Section 261.309, Family Code, is amended by amending Subsection (d) and adding Subsections (b-1), (c-1), (c-2), and (e-1) to read as follows:

(b-1) The immediate supervisor shall submit a written report at the conclusion of the informal review under Subsection (b). The report must summarize the person's case or complaint and contain the supervisor's findings relating to the person's case or complaint. The department shall make the written report available to the person under investigation.

(c-1) At the administrative review under Subsection (c), the person conducting the review for the department shall allow the person challenging the findings to question the investigative workers and immediate supervisors who developed the department's findings. The department may postpone the administrative review for not more than 30 days to ensure attendance of necessary investigative workers and immediate supervisors.

(c-2) The department shall make an audio recording of the administrative review and preserve the recording until the first anniversary of the date the administrative review concludes. The department shall make the audio recording available to any party involved in the review not later than the 10th day after the date the person requests access to the recording.

(d) Unless a civil or criminal court proceeding or an ongoing criminal investigation relating to the alleged abuse or neglect investigated by the department is pending, the department employee shall conduct the review prescribed by Subsection (c) as soon as possible but not later than the 45th day after the date the department receives the request. If a civil court proceeding initiated by the department, a [or] criminal court proceeding, or an ongoing criminal investigation is pending, the department may postpone the review until the court proceeding is completed. The department shall conduct the review not later than the 45th day after the date the court proceeding or investigation is completed.

(e-1) A person under investigation for allegedly abusing or neglecting the person's child is not subject to, and cannot be required to submit to, the jurisdiction of the State Office of Administrative Hearings in any proceeding in connection to the alleged abuse or neglect.

SECTION 6. Section 261.310(d), Family Code, is amended to read as follows:

(d) The standards shall:

(1) recommend that videotaped and audiotaped interviews be uninterrupted;

(2) recommend a maximum number of interviews with and examinations of a suspected victim;

(3) provide procedures to preserve evidence, including the original audio recordings of the intake telephone calls, original notes, videotapes, and other audiotapes, for one year from the later of the date the evidence is created or the date of a final judgment in a case for which the evidence is created; and

(4) provide that an investigator of suspected child abuse or neglect make a reasonable effort to locate and inform each parent of a child of any report of abuse or neglect relating to the child.

SECTION 7. Sections 262.112(a) and (b), Family Code, are amended to read as follows:

(a) The Department of Family and Protective [and Regulatory] Services and the parent, conservator, or legal guardian of a child are [is] entitled to an expedited hearing under this chapter in any proceeding in which a hearing is required if the department determines that a child should be removed from the child's home because of an immediate danger to the physical health or safety of the child.

(b) In any proceeding in which an expedited hearing is held under Subsection (a), the department, parent, conservator, guardian, or other party to the proceeding is entitled to an expedited appeal on a ruling by a court that the child may or may not be removed from the child's home.

SECTION 8. Section 262.114, Family Code, is amended to read as follows:

Sec. 262.114. EVALUATION OF IDENTIFIED RELATIVES AND OTHER DESIGNATED INDIVIDUALS; PLACEMENT. (a) If a governmental entity determines, after completing an investigation, that a child should be removed from the child's home and placed in the custody of the Department of Family and Protective Services, the department shall, on receiving the child placement resources form as provided under Section 261.307, [Before a full adversary hearing under Subchapter C, the Department of Family and Protective Services must] immediately perform a background and criminal history check of:

(1) the relatives or other designated individuals identified as a potential relative or designated caregiver, as defined by Section 264.751; and

(2) each person over 18 years of age who resides in the designated person's household [, on the proposed child placement resources form provided under Section 261.307].

(a-1) The department shall evaluate each person listed on the form by the standards outlined in Section 262.115 to determine the relative or other designated individual who would be the most appropriate substitute caregiver for the child [and must complete a home study of the most appropriate substitute caregiver, if any, before the full adversary hearing].

(a-2) The right of the parent, conservator, or legal guardian of the child to designate the person with whom the child is placed continues until the date the suit affecting the parent-child relationship is dismissed. The parent, conservator, or legal guardian may change the person designated on the child placement resources form as a relative or designated caregiver. The department shall place the child with the person subsequently designated as a relative or designated caregiver, if the child is removed from the care of a person who was previously designated.

(a-3) If the parent, conservator, or legal guardian fails to designate [Until the department identifies] a relative or other designated individual qualified to be a substitute caregiver, the department must continue to explore substitute caregiver options. The time frames in this subsection do not apply to a relative or other designated individual located more than 100 miles from the child's primary residence [in another state].

(b) [The department may place a child with a relative or other designated individual identified on the proposed child placement resources form if the department determines that the placement is in the best interest of the child.] The department may place the child with the relative or designated individual before conducting the background and criminal history check or home study required under Subsection (a). The department shall provide a copy of an informational manual required under Section 261.3071 to the relative or other designated caregiver at the time of the child's placement.

(c) The department shall provide the mother of a child who is breast-feeding with scheduled visitation periods at appropriate intervals to allow the mother to continue breast-feeding the child, unless the court finds after a hearing that the mother is not fit for these visitation periods.

(d) At each hearing conducted 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 to designate a relative or designated caregiver with whom the child is placed.

SECTION 9. Subchapter B, Chapter 262, Family Code, is amended by adding Section 262.115 to read as follows:

Sec. 262.115. LIMITATION ON PLACEMENT WITH DESIGNATED PERSON. (a) Except as provided by Subsection (c), the department may not place a child with a person designated by the child's parent, conservator, or legal guardian under Section 262.114 if the department determines that:

(1) the placement would expose the child to immediate danger to the child's physical health or safety; or

(2) the designated person or another person in the designated person's household:

(A) is listed in the department's statewide central registry system with a finding that the department confirmed, had reason to believe, or could not determine that the person abused or neglected a child;

(B) is the subject of a report of child abuse or neglect being investigated by the department;

(C) has been found to have committed family violence and is or has been the subject of a protective order rendered under Title 4;

(D) has been convicted of a felony, is under indictment for or charged with an offense punishable as a felony, or is under investigation by a state or federal law enforcement agency for an offense punishable as a felony; or

(E) has previously voluntarily relinquished parental rights as the result of an allegation of child abuse or neglect.

(b) A law enforcement agency in this state, on request by the department, shall assist in conducting a criminal background check on a designated person or any other person in the designated person's household.

(c) The department may place a child with a person described by Subsection (a) if the department determines that placement of the child with the designated person will not endanger the child.

(d) If the department determines that the designated person under Section 262.114 is not an appropriate placement for the child, the department shall immediately provide the parent, conservator, or legal guardian with written notice stating the specific facts leading to the department's objections to the placement. The parent, conservator, or legal guardian may challenge the department's placement decision by filing a motion for a hearing before the court. The court shall render an order regarding placement of the child after hearing testimony from the parties. The court may approve the placement of the child with the designated person and order any modification the court determines necessary to address the department's written objections.

SECTION 10. Sections 263.103(a) and (d), Family Code, are amended to read as follows:

(a) Before the service plan is signed, the child's parents and the representative of the department or other agency shall discuss each term and condition of the plan. The representative shall inform the parents that the service plan is voluntary and can only be made mandatory by the department if a suit affecting the parent-child relationship has been filed and the department has obtained court authorization.

(d) The plan takes effect when[:

[(1)] the child's parents and the appropriate representative of the department or other authorized agency sign the plan. If the child's parents refuse to sign the plan, a motion may be filed by any party for a hearing at which the court shall either accept the plan or modify the plan based on the testimony of the parties[; or

[(2) the department or other authorized agency files the plan without the parents' signatures].

SECTION 11. Section 264.751(1), Family Code, is amended to read as follows:

(1) "Designated caregiver" means an individual qualified under Section 262.114 [who has a longstanding and significant relationship with a child for whom the department has been appointed managing conservator and] who:

(A) is appointed to provide substitute care for the child, but is not licensed or certified to operate a foster home, foster group home, agency foster home, or agency foster group home under Chapter 42, Human Resources Code; or

(B) is subsequently appointed permanent managing conservator of the child after providing the care described by Paragraph (A).

SECTION 12. Section 264.753, Family Code, is amended to read as follows:

Sec. 264.753. EXPEDITED PLACEMENT. Because there is a rebuttable presumption that placing a child in the care of a person designated by the child's parent, conservator, or legal guardian is in the child's best interest, the [The] department or other authorized entity shall expedite the completion of the background and criminal history check according to Section 262.114[, the home study,] and any other administrative procedure to ensure that the child is placed with a qualified relative or caregiver as soon as possible after the date the caregiver is identified.

SECTION 13. Section 264.754, Family Code, is amended to read as follows:

Sec. 264.754. INVESTIGATION OF [PROPOSED] PLACEMENT OF CHILD WITH DESIGNATED CAREGIVER. After [Before] placing a child with a proposed relative or other designated caregiver under the standards of Sections 262.114 and 262.115, the department may [must] conduct a comprehensive [an] investigation including a home study to determine whether the designated [proposed] placement meets the minimum standards for the health and safety of the child. There is a rebuttable presumption that a placement with a designated caregiver is in the child's best interest.

SECTION 14. Section 261.302(c), Family Code, is repealed.

SECTION 15. The changes in law made by this Act apply only to an investigation of a report of child abuse or neglect that is made, or a suit affecting the parent-child relationship that is commenced, on or after the effective date of this Act. A report that is made or a suit that is commenced before the effective date of this Act is governed by the law in effect on the date the report was made or the suit was commenced, and the former law is continued in effect for that purpose.

SECTION 16. This Act takes effect September 1, 2007.