82R6043 TJB-F

By: Zerwas H.B. No. 1194

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 261.002, Family Code, is amended by amending Subsection (b) and adding Subsections (d) and (e) to read as follows:

(b) The department may adopt rules necessary to carry out this section. The rules shall provide for procedural protections for individuals reported to have committed abuse or neglect, cooperation with local child service agencies, including hospitals, clinics, and schools, and cooperation with other states in exchanging reports to effect a national registration system.

(d) Before the department may add a record of a case of child abuse or neglect to the central registry, the department must provide to the individual reported to have committed the abuse or neglect:

(1) written notice that information regarding the report will be added to the registry;

(2) a copy of the record that will be added to the registry; and

(3) the opportunity to appeal the department's finding of abuse or neglect as provided by Subsection (e).

(e) An individual described by Subsection (d) may appeal the department's finding of abuse or neglect by requesting a hearing conducted by the State Office of Administrative Hearings. An appeal under this subsection is a contested case under Chapter 2001, Government Code. The department may not include in the central registry a record of a report of child abuse or neglect if the department's finding of abuse or neglect is not sustained by an administrative law judge following a hearing under this section.

SECTION 2. 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 each report until the second anniversary of the date the department or other entity receives the report.

SECTION 3. Sections 261.201(b) and (c), Family Code, are amended 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 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.

SECTION 4. 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 (e-1).

(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 applies only when the department has taken custody of a child under Section 262.104, an ongoing court-ordered investigation is being conducted, or the child's parent, conservator, or legal guardian has consented to the transport.

SECTION 5. 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 6. 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; and

(vii) a list of the specific allegations on which the investigation is based, including the date and a detailed description of each allegation that the department is investigating;

(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 7. Section 261.309, Family Code, is amended by adding Subsections (b-1), (c-1), (c-2), and (e-1) and amending Subsections (c) and (d) 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. Not later than the 20th day after the date the supervisor submits the report, the department shall make the written report available to the person under investigation.

(c) If, after the department's investigation, the person who is alleged to have abused or neglected a child disputes the department's determination of whether child abuse or neglect occurred, the person may request an administrative review of the findings. The department shall provide a copy of the file relating to the person who requests the review to the person not later than the 30th day before the date of the review. A department employee in administration who was not involved in or did not directly supervise the investigation shall conduct the review. The review must sustain, alter, or reverse the department's original findings in the 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 bring witnesses, submit evidence, and 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 8. 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, e-mails, videotapes, and other audiotapes, until the second anniversary of 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 [for one year]; 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 9. Section 261.302(c), Family Code, is repealed.

SECTION 10. 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 11. This Act takes effect September 1, 2011.