BILL ANALYSIS

 

 

Senate Research Center	S.B. 1415
85R11873	By: Hughes
	Health & Human Services
	4/24/2017
	As Filed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

The Parent-Child Protection Act protects children from certain investigations and removals and retains parental rights in the legal process by clarifying the standards that must be met before a child is removed from his or her home. It also closes loopholes in current law that allow investigators to bypass deadlines and other necessary mandates without specific measures of accountability. Finally, it provides additional protections to families and parents by reforming the legal procedure to allow families to give an effective defense while remaining innocent until proven guilty.

 

The Parent-Child Protection Act:

 

1.      Allows the court, for good cause shown, to postpone a show cause hearing for up to a week when requested by the parent or the parent�s attorney;

 

2.      Disallows the filing of a suit to terminate the parental rights of both parents when there is only evidence of abuse against one parent;

 

3.      Prohibits courts from requiring parents to pay child support costs during the pendency of a suit;

 

4.      Disallows the use of the broad-form jury charge and requires that parents be convicted of a specific allegation agreed upon by the jury;

 

5.      Requires cases regarding the same children and same Child Protective Services (CPS) incident to be heard by the same judge/court;

 

6.      Enforces the current one year deadline on CPS cases by automatically dismissing the suit without a court order if the case is not completed by the deadline; and

 

7.      Prohibits ex-parte hearings unless specifically authorized in the Family Code.

 

(1) Allowing the court to postpone a show cause hearing for up to one week when requested by the parent or the parent�s attorney ensures that parents are allowed adequate time to prepare for the hearing or to hire an attorney to defend them.

 

Section 262.201(a), Family Code, requires that within 14 days of a child being taken into possession by the governmental entity, a full adversary hearing (�show cause� hearing) shall be held. Unfortunately, parents often are not notified of the full adversary hearing until shortly before the hearing takes place. This does not allow the parent adequate time to respond to the petition and prepare for the hearing or, if the parent hires an attorney, for the attorney to respond to the petition and prepare for the hearing.

 

Currently, Section 262.201(a-3), Family Code, does allow the court to postpone the full adversary hearing up to 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. However, the law only allows this in the cases where the parent is indigent. The Parent-Child Protection Act solves this problem by allowing the court to grant the same extension to all parents.

 

(2) Disallowing the filing of a suit by CPS against both parents when there is only evidence of abuse/neglect against one parent. Preventing the filing of suit against both parents when only one has been abusive or neglectful protects both the parent and the child from separation between a fit, loving parent and that parent�s child.

 

CPS refers to a parent involved in a suit who has not committed abuse or neglect as the �non-offending� parent. However, it is not uncommon for CPS to file a suit for termination against both parents even when there was only evidence of abuse or neglect against one. Thus, even though the second parent, the �non-offending parent,� may be a fit, loving parent, they are still often subject to a suit for termination of their parental rights.

 

The separation of a fit parent and their child, either through the temporary removal of the child or through the final termination of the parent-child relationship, is devastating to both the child and the family. For this reason, it is paramount that CPS not file for termination against both parents unless there is evidence of abuse or neglect against both parents.

 

The bill prevents CPS from filing for termination against a non-offending parent and prevents the court from terminating parental rights unless there is evidence of abuse and neglect against that parent.

 

As proposed, S.B. 1415 amends current law relating to certain procedures in suits affecting the parent-child relationship.

 

[Note: While the statutory reference in this bill is to the Department of Protective and Regulatory Services (DPRS), the following amendments affect the Department of Family and Protective Services, as the successor agency to DPRS.]

 

RULEMAKING AUTHORITY

 

Rulemaking authority previously granted to the Texas Supreme Court is modified in SECTION 1 (Section 105.002, Family Code) of this bill.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Section 105.002, Family Code, by adding Subsection (d), as follows:

 

(d) Prohibits the court, in a suit affecting the parent-child relationship in which the Department of Family and Protective Services (DFPS) seeks termination of the parent-child relationship, from issuing broad-form questions to the jury on the issue of whether to terminate the parent-child relationship. Requires the court to instruct the jury to find from the evidence whether the grounds for petition are true and requires the jury, if the petition alleges more than one ground for termination, to indicate in the verdict which grounds are sustained by the evidence and which are not sustained. Provides that this subsection, to the extent that this subsection conflicts with the Texas Rules of Civil Procedure, controls and prohibits the Texas Supreme Court, notwithstanding Section 22.004 (Rules of Civil Procedure), Government Code, from amending or adopting rules in conflict with this subsection.

 

SECTION 2. Amends Section 154.001, Family Code, by amending Subsection (b) and adding Subsection (b-1), as follows:

 

(b) Prohibits the court, in a suit filed by DFPS to be named managing conservator of a child, from ordering a parent of the child to make periodic payments for the support of the child while the suit is pending, except as provided by this section (Support of Child). Deletes existing text authorizing the court to order either or both parents to make periodic payments for the support of a child in a proceeding in which the Department of Protective and Regulatory Services (DPRS) is named temporary managing conservator.

 

(b-1) Requires the court, in a proceeding in which a court renders a final order appointing DFPS as managing conservator of a certain child, to order each parent that is financially able to make certain payments, rather than requires the court, in a proceeding in which DPRS is named permanent managing conservator of a certain child, to order each parent that is financially able to make certain payments.

 

SECTION 3. Amends Subchapter B, Chapter 161, Family Code, by adding Section 161.1011, as follows:

 

Sec. 161.1011. FILING REQUIREMENT FOR PETITION RELATING TO MORE THAN ONE CHILD. (a) Requires DFPS, before filing a petition for the termination of the parent-child relationship relating to more than one child, to determine whether any court has continuing, exclusive jurisdiction of a child named in the petition. Requires DFPS, if a court is determined to have continuing, exclusive jurisdiction of child named in the petition, to file the petition in that court.

 

(b) Requires DFPS, if more than one court has continuing, exclusive jurisdiction of a child named in the petition, to file the petition in the court that has most recently exercised continuing, exclusive jurisdiction.

 

SECTION 4. Amends Section 161.206, Family Code, by adding Subsection (a-1), as follows:

 

(a-1) Authorizes the court, in a suit filed by DFPS seeking termination of the parent-child relationship for both parents of the child, to order termination of the parent-child relationship for both parents only if the court finds by clear and convincing evidence grounds for the termination of the parent-child relationship for each parent. Requires that an order rendered under this subsection state the grounds for terminating the parent-child relationship for each parent.��

 

SECTION 5. Amends Section 262.201, Family Code, by adding Subsection (a-5), as follows:

 

(a-5) Authorizes the court, if a parent who is not indigent appears in opposition to the suit, for good cause shown, to 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 (a-3) (relating to authorizing the court to postpone the full adversary hearing for not more than seven days from a certain date and to shorten or lengthen a certain extension under certain conditions).

 

SECTION 6. Amends Subchapter C, Chapter 262, Family Code, by adding Section 262.206, to prohibit a hearing held by a court in a suit under this chapter (Procedures in Suit by Governmental Entity to Protect Health and Safety of Child) from being ex parte, unless otherwise authorized by law.

 

SECTION 7. Amends Section 263.401, Family Code, as follows:

 

Sec. 263.401. DISMISSAL AFTER ONE YEAR; NEW TRIALS; EXTENSION. (a) Provides that the court's jurisdiction over a certain suit, unless the court has taken certain actions, on a certain date, is terminated and the suit is automatically dismissed without a court order, rather than requires the court, unless the court has taken certain actions, on a certain date, to dismiss a certain suit.�

 

(b) Requires the court, if the court retains the suit on the court's docket, to render an order in which the court, among certain other actions, schedules the new date on which the suit will be automatically dismissed if the new trial has not commenced.

 

(b-1) Requires the court, under certain circumstances, to retain the suit on the court�s docket and render an order in which the court, among certain other actions, schedules a new date on which the suit will be automatically dismissed under certain other circumstances.�

 

(c) Provides that the court's jurisdiction over the suit, if the court grants an extension under Subsection (b) or (b-1) but does not commence the trial on the merits before the dismissal date, is terminated and the suit is automatically dismissed without a court order, rather than requiring the court, if the court grants an extension under Subsection (b) or (b-1) but does not commence the trial on the merits before the dismissal date, to dismiss the suit.�

 

SECTION 8. Makes application of this Act prospective.

 

SECTION 9. Effective date: September 1, 2017.