SECTION 13. Section 262.105,
Family Code, is amended to read as follows:
Sec. 262.105. FILING
PETITION AFTER TAKING POSSESSION OF CHILD IN EMERGENCY. (a) When a child
is taken into possession without a court order, the person taking the child
into possession, without unnecessary delay, shall:
(1) file a suit affecting
the parent-child relationship; and
(2) [request the court to
appoint an attorney ad litem for the child; and
[(3)] request an
initial hearing to be held by no later than the first business [working]
day after the date the child is taken into possession.
(b) An original suit
filed by a governmental entity after taking possession of a child under
Section 262.104 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) one of the following
circumstances existed at the time the child was taken into possession:
(A) there was an
immediate danger to the physical health or safety of the child;
(B) the child was the
victim of sexual abuse or of trafficking under Section 20A.02 or 20A.03,
Penal Code;
(C) the parent or person
who had possession of the child was using a controlled substance as defined
by Chapter 481, Health and Safety Code, and the use constituted an
immediate danger to the physical health or safety of the child; or
(D) the parent or person
who had possession of the child permitted the child to remain on premises
used for the manufacture of methamphetamine;
(2) continuation of the
child in the home would have been contrary to the child's welfare;
(3) there was no time,
consistent with the physical health or safety of the child, for a show cause hearing under Subchapter C;
and
(4) 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.
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SECTION 5. Section 262.105,
Family Code, is amended to read as follows:
Sec. 262.105. FILING
PETITION AFTER TAKING POSSESSION OF CHILD IN EMERGENCY. (a) When a child
is taken into possession without a court order, the person taking the child
into possession, without unnecessary delay, shall:
(1) file a suit affecting
the parent-child relationship; and
(2) [request the court to
appoint an attorney ad litem for the child; and
[(3)] request an
initial hearing to be held by no later than the first business [working]
day after the date the child is taken into possession.
(b) An original suit
filed by a governmental entity after taking possession of a child under
Section 262.104 must be supported by an affidavit stating facts sufficient
to satisfy a person of ordinary prudence and caution that:
(1) based on the affiant's personal knowledge or
on information furnished by another person corroborated by the affiant's
personal knowledge, one of the following circumstances existed at
the time the child was taken into possession:
(A) there was an immediate
danger to the physical health or safety of the child;
(B) the child was the
victim of sexual abuse or of trafficking under Section 20A.02 or 20A.03,
Penal Code;
(C) the parent or person
who had possession of the child was using a controlled substance as defined
by Chapter 481, Health and Safety Code, and the use constituted an
immediate danger to the physical health or safety of the child; or
(D) the parent or person
who had possession of the child permitted the child to remain on premises
used for the manufacture of methamphetamine; and
(2) based on the affiant's personal knowledge:
(A) continuation of the
child in the home would have been contrary to the child's welfare;
(B) there was no time,
consistent with the physical health or safety of the child, for a full adversary hearing under Subchapter
C; and
(C) 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.
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SECTION 15. Section
262.107(a), Family Code, is amended to read as follows:
(a) The court shall order
the return of the child at the initial hearing regarding a child taken in
possession without a court order by a governmental entity unless the court
is satisfied that:
(1) one of the following
circumstances exists:
(A) there is a
continuing danger to the physical health or safety of the child if the
child is returned to the parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian who is presently entitled to
possession of the child; or
(B) the evidence shows that:
(i) the child has
been the victim of sexual abuse or of trafficking under Section 20A.02 or
20A.03, Penal Code, on one or more occasions and that there is a
substantial risk that the child will be the victim of sexual abuse or of
trafficking in the future;
(ii) 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; or
(iii) the parent or
person who has possession of the child has permitted the child to remain on
premises used for the manufacture of methamphetamine;
(2) continuation of the
child in the home would be contrary to the child's welfare; 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.
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SECTION 7. Section
262.107(a), Family Code, is amended to read as follows:
(a) The court shall order
the return of the child at the initial hearing regarding a child taken in
possession without a court order by a governmental entity unless the court
is satisfied that:
(1) the evidence shows that one of the
following circumstances exists:
(A) there is a
continuing danger to the physical health or safety of the child if the
child is returned to the parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian who is presently entitled to
possession of the child;
(B) [or the evidence shows that] the
child has been the victim of sexual abuse or of trafficking under Section
20A.02 or 20A.03, Penal Code, on one or more occasions and that there is a
substantial risk that the child will be the victim of sexual abuse or of
trafficking in the future;
(C) 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; or
(D) the parent or person
who has possession of the child has permitted the child to remain on
premises used for the manufacture of methamphetamine;
(2) continuation of the
child in the home would be contrary to the child's welfare; 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.
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SECTION 20. Section 262.201,
Family Code, is amended to read as follows:
Sec. 262.201. SHOW CAUSE
[FULL ADVERSARY] HEARING; FINDINGS OF THE COURT.
(a) In a suit filed under
Section 262.101 or 262.105, unless [Unless] the child has
already been returned to the parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian entitled to possession and
the temporary order, if any, has been dissolved, a show cause [full adversary] hearing shall be held not later
than the 14th day after the date the child was taken into possession by the
governmental entity, unless the court grants an extension under Subsection (e)
[(a-3)].
(b) A show cause hearing in a suit filed
under Section 262.113 requesting possession of a child shall be held not
later than the 30th day after the date the suit is filed.
(c) [(a-1)]
Before commencement of the show cause [full adversary] hearing, the
court must inform each parent not represented by an attorney of:
(1) the right to be
represented by an attorney; and
(2) if a parent is indigent
and appears in opposition to the suit, the right to a court-appointed
attorney.
(d) [(a-2)] If
a parent claims indigence and requests the appointment of an attorney
before the show cause [full adversary] hearing, the
court shall require the parent to complete and file with the court an
affidavit of indigence. The court may consider additional evidence to
determine whether the parent is indigent, including evidence relating to
the parent's income, source of income, assets, property ownership, benefits
paid in accordance with a federal, state, or local public assistance
program, outstanding obligations, and necessary expenses and the number and
ages of the parent's dependents. If the appointment of an attorney for the
parent is requested, the court shall make a determination of indigence
before commencement of the show cause [full adversary] hearing. If
the court determines the parent is indigent, the court shall appoint an
attorney to represent the parent.
(e) [(a-3)]
The court may, for good cause shown, postpone the show cause [full adversary] hearing for not more than seven
days from the date of the attorney's appointment to provide the attorney
time to respond to the petition and prepare for the hearing. The court may
shorten or lengthen the extension granted under this subsection if the
parent and the appointed attorney agree in writing. If the court postpones
the show cause [full adversary] hearing,
the court shall extend a
temporary order, temporary restraining order, or attachment issued by the
court under Section 262.102(a) for the protection of the child until the
date of the rescheduled show cause [full adversary] hearing.
(f) [(a-4)]
The court shall ask all parties present at the show cause [full
adversary] hearing whether the child or the child's family has a
Native American heritage and identify any Native American tribe with which
the child may be associated.
(g) In a suit filed under
Section 262.101 or 262.105, at [(b) At] the conclusion of the show cause [full adversary] hearing, the court shall order
the return of the child to the parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian entitled to possession
unless the court finds sufficient evidence to satisfy a person of ordinary
prudence and caution that:
(1) there was a danger to
the physical health or safety of the child, including a danger that the
child would be a victim of trafficking under Section 20A.02 or 20A.03,
Penal Code, which was caused by an act or failure to act of the person
entitled to possession and for the child to remain in the home is contrary
to the welfare of the child;
(2) the urgent need for
protection required the immediate removal of the child and reasonable
efforts, consistent with the circumstances and providing for the safety of
the child, were made to eliminate or prevent the child's removal; and
(3) reasonable efforts have
been made to enable the child to return home, but there is a substantial
risk of a continuing danger if the child is returned home.
(h) In determining
whether there is a continuing danger to the physical health or safety of
the child under Subsection (g), the court may consider whether the
household to which the child would be returned or in which the child would be allowed to remain includes
a person who:
(1) has abused or
neglected another child in a manner that caused serious injury to or the
death of the other child; or
(2) has sexually abused
another child.
(i) In a suit filed under
Section 262.101 or 262.105, if [(c) If] the court finds
sufficient evidence to satisfy a person of ordinary prudence and caution
that there is a continuing danger to the physical health or safety of the
child and for the child to remain in the home is contrary to the welfare of
the child, the court shall issue an appropriate temporary order under
Chapter 105.
(j) In a suit filed under
Section 262.113, at the conclusion of the show
cause hearing, the court may
grant the request to remove the child from the parent, managing conservator,
possessory conservator, guardian, caretaker, or custodian entitled to
possession of the child
if the court finds
sufficient evidence to satisfy a person of ordinary prudence and caution
that:
(1) continuation of the
child in the home would be contrary to the child's welfare; and
(2) 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.
(k) If the court finds
that the child requires protection from family violence, as that term is
defined by Section 71.004, by a member of the child's family or household,
the court shall render a protective order for the child under Title 4.
(l) The court shall
require each parent, alleged father, or relative of the child before the
court to complete the proposed child placement resources form provided
under Section 261.307 and file the form with the court, if the form has not
been previously filed with the court, and provide the Department of Family
and Protective Services with information necessary to locate any other
absent parent, alleged father, or relative of the child. The court shall
inform each parent, alleged father, or relative of the child before the
court that the person's failure to submit the proposed child placement
resources form will not delay any court proceedings relating to the child.
(m) The court shall
inform each parent in open court that parental and custodial rights and
duties may be subject to restriction or to termination unless the parent or
parents are willing and able to provide the child with a safe environment.
[If the court finds that the child requires protection from family
violence by a member of the child's family or household, the court shall
render a protective order under Title 4 for the child. In this subsection,
"family violence" has the meaning assigned by Section 71.004.
[(d) In determining
whether there is a continuing danger to the physical health or safety of
the child, the court may consider whether the household to which the child
would be returned includes a person who:
[(1) has abused or
neglected another child in a manner that caused serious injury to or the
death of the other child; or
[(2) has sexually abused
another child.]
(n) [(e)] The
court shall place a child removed from the child's custodial parent with
the child's noncustodial parent or with
a relative of the child if placement with the noncustodial parent is
inappropriate, unless placement with the noncustodial parent or a relative
is not in the best interest of the child.
(o) [(f)] When
citation by publication is needed for a parent or alleged or probable
father in an action brought under this chapter because the location of the
parent, alleged father, or probable father is unknown, the court may render
a temporary order without delay at any time after the filing of the action
without regard to whether notice of the citation by publication has been
published.
(p) [(g)] For
the purpose of determining under Subsection (a) the 14th day after the date
the child is taken into possession, a child is considered to have been
taken into possession by the Department of Family and Protective Services
on the expiration of the five-day period permitted under Section 262.007(c)
or 262.110(b), as appropriate.
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SECTION 10. Section 262.201,
Family Code, is amended to read as follows:
Sec. 262.201. FULL ADVERSARY
HEARING; FINDINGS OF THE COURT.
(a) In a suit filed under
Section 262.101 or 262.105, unless [Unless] the child has
already been returned to the parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian entitled to possession and
the temporary order, if any, has been dissolved, a full adversary hearing shall be held not later than the
14th day after the date the child was taken into possession by the
governmental entity, unless the court grants an extension under Subsection (e)
[(a-3)].
(b) A full adversary hearing in a suit filed
under Section 262.113 requesting possession of a child shall be held not
later than the 30th day after the date the suit is filed.
(c) [(a-1)]
Before commencement of the full
adversary hearing, the court must inform each parent not represented
by an attorney of:
(1) the right to be
represented by an attorney; and
(2) if a parent is indigent
and appears in opposition to the suit, the right to a court-appointed
attorney.
(d) [(a-2)] If
a parent claims indigence and requests the appointment of an attorney
before the full adversary
hearing, the court shall require the parent to complete and file with the
court an affidavit of indigence. The court may consider additional
evidence to determine whether the parent is indigent, including evidence
relating to the parent's income, source of income, assets, property
ownership, benefits paid in accordance with a federal, state, or local
public assistance program, outstanding obligations, and necessary expenses
and the number and ages of the parent's dependents. If the appointment of
an attorney for the parent is requested, the court shall make a
determination of indigence before commencement of the full adversary hearing. If the court
determines the parent is indigent, the court shall appoint an attorney to
represent the parent.
(e) [(a-3)]
The court may, for good cause shown, postpone the full adversary hearing for not more than seven days from
the date of the attorney's appointment to provide the attorney time to
respond to the petition and prepare for the hearing. The court may shorten
or lengthen the extension granted under this subsection if the parent and
the appointed attorney agree in writing. If the court postpones the full adversary hearing,
the court shall extend a
temporary order, temporary restraining order, or attachment issued by the
court under Section 262.102(a) or
Section 262.1131 for the protection of the child until the date
of the rescheduled full adversary
hearing.
(f) [(a-4)]
The court shall ask all parties present at the full adversary hearing whether the child or the child's
family has a Native American heritage and identify any Native American
tribe with which the child may be associated.
(g) In a suit filed under
Section 262.101 or 262.105, at [(b) At] the conclusion of the full adversary hearing, the court shall
order the return of the child to the parent, managing conservator,
possessory conservator, guardian, caretaker, or custodian entitled to
possession unless the court finds sufficient evidence to satisfy a person
of ordinary prudence and caution that:
(1) there was a danger to
the physical health or safety of the child, including a danger that the
child would be a victim of trafficking under Section 20A.02 or 20A.03,
Penal Code, which was caused by an act or failure to act of the person
entitled to possession and for the child to remain in the home is contrary
to the welfare of the child;
(2) the urgent need for
protection required the immediate removal of the child and reasonable
efforts, consistent with the circumstances and providing for the safety of
the child, were made to eliminate or prevent the child's removal; and
(3) reasonable efforts have
been made to enable the child to return home, but there is a substantial
risk of a continuing danger if the child is returned home.
(i) In determining
whether there is a continuing danger to the physical health or safety of
the child under Subsection (g), the court may consider whether the
household to which the child would be returned includes a person who:
(1) has abused or neglected
another child in a manner that caused serious injury to or the death of the
other child; or
(2) has sexually abused
another child.
(h) In a suit filed under
Section 262.101 or 262.105, if [(c) If] the court finds
sufficient evidence to satisfy a person of ordinary prudence and caution
that there is a continuing danger to the physical health or safety of the
child and for the child to remain in the home is contrary to the welfare of
the child, the court shall issue an appropriate temporary order under
Chapter 105.
(j) In a suit filed under
Section 262.113, at the conclusion of the full
adversary hearing, the court shall
issue an appropriate temporary order under Chapter 105
if the court finds
sufficient evidence to satisfy a person of ordinary prudence and caution
that:
(1) there is a continuing danger to the physical
health or safety of the child caused by an act or failure to act of the
person entitled to possession of the child and continuation of the
child in the home would be contrary to the child's welfare; and
(2) 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.
(k) If the court finds
that the child requires protection from family violence, as that term is
defined by Section 71.004, by a member of the child's family or household,
the court shall render a protective order for the child under Title 4.
(l) The court shall
require each parent, alleged father, or relative of the child before the
court to complete the proposed child placement resources form provided
under Section 261.307 and file the form with the court, if the form has not
been previously filed with the court, and provide the Department of Family
and Protective Services with information necessary to locate any other
absent parent, alleged father, or relative of the child. The court shall
inform each parent, alleged father, or relative of the child before the
court that the person's failure to submit the proposed child placement
resources form will not delay any court proceedings relating to the child.
(m) The court shall
inform each parent in open court that parental and custodial rights and
duties may be subject to restriction or to termination unless the parent or
parents are willing and able to provide the child with a safe environment.
[If the court finds that the child requires protection from family
violence by a member of the child's family or household, the court shall
render a protective order under Title 4 for the child. In this subsection,
"family violence" has the meaning assigned by Section 71.004.
[(d) In determining
whether there is a continuing danger to the physical health or safety of
the child, the court may consider whether the household to which the child
would be returned includes a person who:
[(1) has abused or
neglected another child in a manner that caused serious injury to or the
death of the other child; or
[(2) has sexually abused
another child.]
(n) [(e)] The
court shall place a child removed from the child's custodial parent with
the child's noncustodial parent unless
the court finds that:
(1) there is a danger to the physical health or safety of the
child caused by an act or failure to act of the child's noncustodial parent
and placement of the child with the child's noncustodial parent would be
contrary to the child's welfare;
(2) reasonable efforts, consistent with the circumstances and
providing for the safety of the child, were made to place the child with
the child's noncustodial parent; and
(3) it is not in the best interest of the child to be placed
with the child's noncustodial parent.
(o) If [or
with a relative of the child if] placement with the noncustodial parent
is inappropriate, the court shall place a child removed from the child's
custodial parent with a relative of the child unless placement with [the
noncustodial parent or] a relative is not in the best interest of the
child.
(p) [(f)] When
citation by publication is needed for a parent or alleged or probable
father in an action brought under this chapter because the location of the
parent, alleged father, or probable father is unknown, the court may render
a temporary order without delay at any time after the filing of the action
without regard to whether notice of the citation by publication has been
published.
(q) [(g)] For
the purpose of determining under Subsection (a) the 14th day after the date
the child is taken into possession, a child is considered to have been
taken into possession by the Department of Family and Protective Services
on the expiration of the five-day period permitted under Section 262.007(c)
or 262.110(b), as appropriate.
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