BILL ANALYSIS

 

 

Senate Research Center	S.B. 999
	By: West
	Health & Human Services
	6/21/2017
	Enrolled

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

Under Chapter 262, Family Code, there are three different ways a child might be removed from his or her parent or caregiver. Each situation has a corresponding set of requirements for the court hearing and the specific judicial findings a court must make before it gives the Department of Family and Protective Services (DFPS) custody of a child.

 

�         Emergency Removal With Court Order (Section 262.101).

 

�         Emergency Removal Without Court Order (Section 262.104).

 

�         Non-Emergency Removal With Prior Court Order (Section 262.113).

 

Section 262.201 governs hearings related to the first two types of removals, while Section 262.205 governs hearings related to the third. The procedural and due process requirements are not identical. For example, an affidavit in support of a petition for removal in an emergency with or without a court order must state that there is immediate danger to a child's physical health or safety. An affidavit supporting a petition for removal under the other scenario, however, does not have to mention "immediate danger."

 

Hearings under Section 262.201 are referred to as "adversary" hearings. The hearing under Section 262.205 is referred to as a "show cause" hearing.

 

S.B. 999 would clarify and align language affecting petitions, evidence, and orders governed by Chapter 262 (Procedures in Suit by Governmental Entity to Protect Health and Safety of Child).

 

In addition to the hearing terminology change and some statutory clean-up for purposes of clarity, the bill would make the following substantive changes:

 

It provides that an affidavit supporting a petition filed after taking possession of a child in an emergency (without a court order) state facts related to reasonable efforts made to avoid removal. This is intended to provide statutory guidance to judges and attorneys that is currently absent from the code.

 

It also provides a deadline by which a court must hear a petition for removal filed in a nonemergency situation as well as a standard of proof for determining whether there is continuing danger to the physical health and safety of a child if the child were to remain in the home. As with emergency removals involving immediate danger, the court may consider in a nonemergency hearing whether a household in which the child would be allowed to remain includes a person who has abused or neglected another child and in so doing caused serious injury or death, or sexually abused another child.

 

Finally, the bill specifies that in a non-emergency removal case the court can issue a temporary order if it finds 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 child, continuation of the child in the home would be contrary to the child's welfare, and 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.

 

S.B. 999 amends current law relating to procedures for taking possession of a child and for certain hearings in a suit affecting the parent-child relationship involving the Department of Family and Protective Services.

 

RULEMAKING AUTHORITY

 

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Section 155.201, Family Code, by adding Subsection (d), as follows:

 

(d) Requires the court of continuing, exclusive jurisdiction, on receiving notice that a court exercising jurisdiction under Chapter 262 (Procedures in Suit by Governmental Entity to Protect Health and Safety of Child) has ordered the transfer of a suit under Section 262.203(a)(2) (relating to requiring the court that rendered the temporary order to, in accordance with certain procedures and if certain criteria are met, order a transfer of the suit), to, in accordance with the requirements of Section 155.204(i), transfer the proceedings to the court in which the suit under Chapter 262 is pending within the time required by Section 155.207(a)(relating to requiring the clerk of the court transferring a proceeding, not later than the 10th working day after the date an order of transfer is signed, to send certain information to the proper court in the county to which the transfer is being made).

 

SECTION 2. Amends Section 155.204(i), Family Code, as follows:

 

(i) Requires the Department of Family and Protective Services, rather than authorizes a party, if a transfer order has been signed by a court exercising jurisdiction under Chapter 262, to file the transfer order with the clerk of the court of continuing, exclusive jurisdiction. Requires the clerk of the court of continuing, exclusive jurisdiction, on receipt and without a hearing or further order from the court of continuing, exclusive jurisdiction, to transfer the files as provided by this subchapter (Transfer of Continuing, Exclusive Jurisdiction) within the time required by Section 155.207(a).

 

SECTION 3. Amends Subchapter A, Chapter 262, Family Code, by adding Section 262.013, as follows:

 

Sec. 262.013. FILING REQUIREMENT FOR PETITION REGARDING MORE THAN ONE CHILD. Requires that each suit under this chapter based on allegations of abuse or neglect arising from the same incident or occurrence and involving children that live in the same home be filed in the same court.

 

SECTION 4. Amends Section 262.101, Family Code, as follows:

 

Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF CHILD. Requires that an original suit filed by a governmental entity that requests permission to take possession of a child without prior notice and hearing 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) makes a nonsubstantive change;

 

(2) creates this subdivision from existing text and makes a nonsubstantive change;

 

(3) redesignates existing Subdivision (2) as Subdivision (3) and makes no further changes to this subdivision; and

 

(4) redesignates existing Subdivision (3) as Subdivision (4) and makes no further changes to this subdivision.

 

SECTION 5. Amends Section 262.1015(d), Family Code, to provide that a temporary restraining order under this section expires not later than the 14th day after the date the order was rendered, unless the court grants an extension under Section 262.201(e) (relating to placement of the child removed from the child's custodial parent), rather than 262.201(a-3).

 

SECTION 6. Amends Section 262.102(a), Family Code, as follows:

 

(a) Requires a court, before a court may, without prior notice and a hearing, issue a temporary order for the conservatorship of a child under Section 105.001(a)(1) (relating to authorizing a court to make an order for the temporary conservatorship of the child) or a temporary restraining order or attachment of a child authorizing a governmental entity to take possession of a child in a suit brought by a governmental entity, to find that:

 

(1) makes a nonsubstantive change;

 

(2) creates this subdivision from existing text and makes a nonsubstantive change;

 

(3) redesignates existing Subdivision (2) as Subdivision (3) and makes no further changes to this subdivision; and

 

(4) redesignates existing Subdivision (3) as Subdivision (4) and makes no further changes to this subdivision.

 

SECTION 7. Amends Section 262.103, Family Code, to change a reference to Section 262.201(a-3) to 262.201(e).

 

SECTION 8. Amends Section 262.105, Family Code, as follows:

 

Sec. 262.105. FILING PETITION AFTER TAKING POSSESSION OF CHILD IN EMERGENCY. (a) Requires the person taking the child into possession, when a child is taken into possession without a court order, without unnecessary delay, to:

 

(1) and (2) makes no changes to these subdivisions;

 

(3) request an initial hearing to be held by no later than the first business day, rather than working day, after the date the child is taken into possession.

 

(b) Requires that an original suit filed by a governmental entity after taking possession of a child under Section 262.104 (Taking Possession of a Child in Emergency Without a Court Order) be supported by an affidavit stating facts sufficient to satisfy a person of ordinary prudence and caution of certain circumstances pertaining to the child.

 

SECTION 9. Amends Sections 262.106(a) and (d), Family Code, as follows:

 

(a) Requires the court in which a suit has been filed after a child has been taken into possession without a court order by a governmental entity to hold an initial hearing on or before the first business, rather than working, day after the date the child is taken into possession. Makes conforming changes.

 

(d) Makes a conforming change.

 

SECTION 10. Amends Section 262.107(a), Family Code, as follows:

 

(a) Requires the court to 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) creates this paragraph from existing text and makes a nonsubstantive change;

 

(B) creates this paragraph from existing text and deletes existing text providing that the evidence shows that;

 

(C) the parent or person who has possession of the child is currently using a controlled substance as defined by Chapter 481 (Texas Controlled Substances Act), 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) and (3) makes no changes to these subdivisions.

 

SECTION 11. Amends Section 262.109(b), Family Code, to change a reference to working day to business day.

 

SECTION 12. Amends Subchapter B, Chapter 262, Family Code, by adding Section 262.1131, as follows:

 

Sec. 262.1131. TEMPORARY RESTRAINING ORDER BEFORE FULL ADVERSARY HEARING. Authorizes the court, in a suit filed under Section 262.113 (Filing Suit Without Taking Possession of Child), to render a temporary restraining order as provided by Section 105.001 (Temporary Orders Before Final Order).

 

SECTION 13. Amends Section 262.201, Family Code, as follows:

 

Sec. 262.201. FULL ADVERSARY HEARING; FINDINGS OF THE COURT. (a) Requires that a full adversary hearing 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) or (e-1), rather than Subsection (a-3), in a suit filed under Section 262.101 or 262.105 (Filing Petition After Taking Possession of Child in Emergency), 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.

 

(b) Requires that a full adversary hearing in a suit filed under Section 262.113 requesting possession of a child be held not later than the 30th day after the date the suit is filed.

 

(c) Redesignates existing Subsection (a-1) as Subsection (c).

 

(d) Redesignates existing Subsection (a-2) as Subsection (d).

 

(e) Redesignates existing Subsection (a-3) as Subsection (e) and includes a reference to Section 262.1131.

 

(e-1) Authorizes the court, if a parent who is not indigent appears in opposition to the suit, to, for good cause shown, postpone the full adversary hearing for not more than seven days from the date of the parent's appearance to allow the parent to hire an attorney or to provide the parent's attorney time to respond to the petition and prepare for the hearing. Provides that a postponement under this subsection is subject to the limits and requirements prescribed by Subsection (e).

 

(f) Redesignates existing Subsection (a-4) as Subsection (f).

 

(g) Redesignates existing Subsection (b) as Subsection (g). Requires the court, in a suit filed under Section 262.101 or 262.105, at the conclusion of the full adversary hearing, to 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 of certain circumstances pertaining to the child.

 

(h) Redesignates existing Subsection (c) as Subsection (h). Requires the court, in a suit filed under Section 262.101 or 262.105, 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, to issue an appropriate temporary order under Chapter 105 (Settings, Hearings, and Orders).

 

(i) Authorizes the court, in determining whether there is a continuing danger to the physical health or safety of the child under Subsection (g), to 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.

 

(j) Requires the court, in a suit filed under Section 262.113, at the conclusion of the full adversary hearing, to 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) Requires the court, if the court finds that the child requires protection from family violence, as that term is defined by Section 71.004 (Family Violence), by a member of the child's family or household, to render a protective order for the child under Title 4 (Protective Orders and Family Violence).

 

(l) Creates this subsection from existing text and makes no further changes to this subsection.

 

(m) Creates this subsection from existing text. Deletes existing text requiring the court, if the court finds that the child requires protection from family violence by a member of the child's family or household, to render a protective order under Title 4 for the child. Deletes existing text defining "family violence." Deletes existing Subsection (d), relating to authorizing the court to take certain consideration in determining whether there is a continued danger to the physical health or safety of the child.

 

(n) Redesignates existing Subsection (e) as Subsection (n) and makes no further changes to this subsection.

 

(o) Redesignates existing Subsection (f) as Subsection (o) and makes no further changes to this subsection.

 

(p) Redesignates existing Subsection (g) as Subsection (p) and makes no further changes to this subsection.

 

SECTION 14. Amends Section 262.203(a), Family Code, as follows:

 

(a) Requires the court that rendered the temporary order, on the motion of a party or the court's own motion, if applicable, in accordance with procedures provided by Chapter 155 (Continuing, Exclusive Jurisdiction; Transfer) to:

 

(1) transfer the suit to the court of continuing, exclusive jurisdiction, if any, within the time required by Section 155.207(a), if the court finds that the transfer is necessary for the convenience of the parties and in the best interest of the child;

 

(2) order transfer of the suit from the court of continuing, exclusive jurisdiction, rather than if grounds exist for mandatory transfer from the court of continuing, exclusive jurisdiction under Section 155.201, order transfer of the suit from that court; or

 

(3) makes no changes to this subdivision.

 

SECTION 15. Repealer: Section 262.205 (Hearing When Child Not in Possession of Governmental Entity), Family Code.

 

SECTION 16. Makes application of this Act prospective.

 

SECTION 17. Effective date: September 1, 2017.