85R7332 MM-F
 
  By: West S.B. No. 999
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  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.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 7.029(a), Education Code, is amended to
  read as follows:
         (a)  The agency and the Department of Family and Protective
  Services shall enter into a memorandum of understanding regarding
  the exchange of information as appropriate to facilitate the
  department's evaluation of educational outcomes of students in
  foster care. The memorandum of understanding must require:
               (1)  the department to provide the agency each year
  with demographic information regarding individual students who
  during the preceding school year were in the conservatorship of the
  department following a show cause [an adversarial] hearing under
  Section 262.201, Family Code; and
               (2)  the agency, in a manner consistent with federal
  law, to provide the department with aggregate information regarding
  educational outcomes of students for whom the agency received
  demographic information under Subdivision (1).
         SECTION 2.  Section 29.153(b), Education Code, is amended to
  read as follows:
         (b)  A child is eligible for enrollment in a prekindergarten
  class under this section if the child is at least three years of age
  and:
               (1)  is unable to speak and comprehend the English
  language;
               (2)  is educationally disadvantaged;
               (3)  is a homeless child, as defined by 42 U.S.C.
  Section 11434a, regardless of the residence of the child, of either
  parent of the child, or of the child's guardian or other person
  having lawful control of the child;
               (4)  is the child of an active duty member of the armed
  forces of the United States, including the state military forces or
  a reserve component of the armed forces, who is ordered to active
  duty by proper authority;
               (5)  is the child of a member of the armed forces of the
  United States, including the state military forces or a reserve
  component of the armed forces, who was injured or killed while
  serving on active duty; or
               (6)  is or ever has been in the conservatorship of the
  Department of Family and Protective Services following a show cause
  [an adversary] hearing held as provided by Section 262.201, Family
  Code.
         SECTION 3.  Section 61.0909(b), Education Code, is amended
  to read as follows:
         (b)  The board and the department shall enter into a
  memorandum of understanding regarding the exchange of information
  as appropriate to facilitate the department's evaluation of
  educational outcomes of students at institutions of higher
  education who were formerly in the conservatorship of the
  department. The memorandum of understanding must require:
               (1)  the department to provide the board each year with
  demographic information regarding individual students enrolled at
  institutions of higher education who were formerly in the
  conservatorship of the department following a show cause [an
  adversarial] hearing under Section 262.201, Family Code; and
               (2)  the board, in a manner consistent with federal
  law, to provide the department with aggregate information regarding
  educational outcomes of students for whom the board received
  demographic information under Subdivision (1).
         SECTION 4.  Section 105.001(h), Family Code, is amended to
  read as follows:
         (h)  An order under Subsection (a)(1) may be rendered without
  notice and a show cause [an adversary] hearing if the order is an
  emergency order sought by a governmental entity under Chapter 262.
         SECTION 5.  Section 107.011(a), Family Code, is amended to
  read as follows:
         (a)  Except as otherwise provided by this subchapter, in a
  suit filed by a governmental entity seeking termination of the
  parent-child relationship or the appointment of a conservator for a
  child, the court shall appoint a guardian ad litem to represent the
  best interests of the child immediately after the filing of the
  petition but before the show cause [full adversary] hearing.
         SECTION 6.  Section 107.012, Family Code, is amended to read
  as follows:
         Sec. 107.012.  MANDATORY APPOINTMENT OF ATTORNEY AD LITEM
  FOR CHILD. In a suit filed by a governmental entity requesting
  termination of the parent-child relationship or to be named
  conservator of a child, the court shall appoint an attorney ad litem
  to represent the interests of the child immediately after the
  filing, but before the show cause [full adversary] hearing, to
  ensure adequate representation of the child.
         SECTION 7.  Sections 107.0141(a) and (c), Family Code, are
  amended to read as follows:
         (a)  The court may appoint an attorney ad litem to represent
  the interests of a parent for a limited period beginning at the time
  the court issues a temporary restraining order or attachment of the
  parent's child under Chapter 262 and ending on the court's
  determination of whether the parent is indigent before commencement
  of the show cause [full adversary] hearing.
         (c)  If the attorney ad litem identifies and locates the
  parent, the attorney ad litem shall:
               (1)  inform the parent of the parent's right to be
  represented by an attorney and of the parent's right to an attorney
  ad litem appointed by the court, if the parent is indigent and
  appears in opposition to the suit;
               (2)  if the parent claims indigence and requests an
  attorney ad litem beyond the period of the temporary appointment
  under this section, assist the parent in making a claim of indigence
  for the appointment of an attorney ad litem; and
               (3)  assist the parent in preparing for the show cause
  [full adversary] hearing under Subchapter C, Chapter 262.
         SECTION 8.  Section 262.011, Family Code, as added by
  Chapter 338 (H.B. 418), Acts of the 84th Legislature, Regular
  Session, 2015, is amended to read as follows:
         Sec. 262.011.  PLACEMENT IN SECURE AGENCY FOSTER HOME OR
  SECURE AGENCY FOSTER GROUP HOME. A court in an emergency, initial,
  or show cause [full adversary] hearing conducted under this chapter
  may order that the child who is the subject of the hearing be placed
  in a secure agency foster home or secure agency foster group home
  verified in accordance with Section 42.0531, Human Resources Code,
  if the court finds that:
               (1)  the placement is in the best interest of the child;
  and
               (2)  the child's physical health or safety is in danger
  because the child has been recruited, harbored, transported,
  provided, or obtained for forced labor or commercial sexual
  activity, including any child subjected to an act specified in
  Section 20A.02 or 20A.03, Penal Code.
         SECTION 9.  Section 262.101, Family Code, is amended to read
  as follows:
         Sec. 262.101.  FILING PETITION BEFORE TAKING POSSESSION OF
  CHILD. An original suit filed by a governmental entity that
  requests permission to take possession of a child without prior
  notice and a hearing 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)  there is an immediate danger to the physical
  health or safety of the child or the child has been a victim of
  neglect or sexual abuse;
               (2)  [and that] continuation in the home would be
  contrary to the child's welfare;
               (3) [(2)]  there is no time, consistent with the
  physical health or safety of the child, for a show cause [full
  adversary] hearing under Subchapter C; and
               (4) [(3)]  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.
         SECTION 10.  Sections 262.1015(b) and (d), Family Code, are
  amended to read as follows:
         (b)  A court may issue a temporary restraining order in a
  suit by the department for the removal of an alleged perpetrator
  under Subsection (a) if the department's petition states facts
  sufficient to satisfy the court that:
               (1)  there is an immediate danger to the physical
  health or safety of the child or the child has been a victim of
  sexual abuse;
               (2)  there is no time, consistent with the physical
  health or safety of the child, for a show cause [an adversary]
  hearing;
               (3)  the child is not in danger of abuse from a parent
  or other adult with whom the child will continue to reside in the
  residence of the child;
               (4)  the parent or other adult with whom the child will
  continue to reside in the child's home is likely to:
                     (A)  make a reasonable effort to monitor the
  residence; and
                     (B)  report to the department and the appropriate
  law enforcement agency any attempt by the alleged perpetrator to
  return to the residence; and
               (5)  the issuance of the order is in the best interest
  of the child.
         (d)  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) [262.201(a-3)].
         SECTION 11.  Section 262.102(a), Family Code, is amended to
  read as follows:
         (a)  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) 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,
  the court must find that:
               (1)  there is an immediate danger to the physical
  health or safety of the child or the child has been a victim of
  neglect or sexual abuse;
               (2)  [and that] continuation in the home would be
  contrary to the child's welfare;
               (3) [(2)]  there is no time, consistent with the
  physical health or safety of the child and the nature of the
  emergency, for a show cause [full adversary] hearing under
  Subchapter C; and
               (4) [(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.
         SECTION 12.  Section 262.103, Family Code, is amended to
  read as follows:
         Sec. 262.103.  DURATION OF TEMPORARY ORDER, TEMPORARY
  RESTRAINING ORDER, AND ATTACHMENT. A temporary order, temporary
  restraining order, or attachment of the child issued under Section
  262.102(a) expires not later than 14 days after the date it is
  issued unless it is extended as provided by the Texas Rules of Civil
  Procedure or Section 262.201(e) [262.201(a-3)].
         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.
         SECTION 14.  Sections 262.106(a), (b), and (d), Family Code,
  are amended to read as follows:
         (a)  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 shall hold an initial hearing on or before the
  first business [working] day after the date the child is taken into
  possession. The court shall render orders that are necessary to
  protect the physical health and safety of the child. If the court
  is unavailable for a hearing on the first business [working] day,
  then, and only in that event, the hearing shall be held no later
  than the first business [working] day after the court becomes
  available, provided that the hearing is held no later than the third
  business [working] day after the child is taken into possession.
         (b)  The initial hearing may be ex parte and proof may be by
  sworn petition or affidavit if a show cause [full adversary]
  hearing is not practicable.
         (d)  For the purpose of determining under Subsection (a) the
  first business [working] day after the date the child is taken into
  possession, the 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.
         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.
         SECTION 16.  Section 262.109(b), Family Code, is amended to
  read as follows:
         (b)  The written notice must be given as soon as practicable,
  but in any event not later than the first business [working] day
  after the date the child is taken into possession.
         SECTION 17.  Subchapter B, Chapter 262, Family Code, is
  amended by adding Section 262.1131 to read as follows:
         Sec. 262.1131.  TEMPORARY RESTRAINING ORDER BEFORE SHOW
  CAUSE HEARING. In a suit filed under Section 262.113, the court may
  render a temporary restraining order as provided by Section
  105.001.
         SECTION 18.  Sections 262.114(a), (a-1), and (a-2), Family
  Code, are amended to read as follows:
         (a)  Before a show cause [full adversary] hearing under
  Subchapter C, the Department of Family and Protective Services must
  perform a background and criminal history check of the relatives or
  other designated individuals identified as a potential relative or
  designated caregiver, as defined by Section 264.751, on the
  proposed child placement resources form provided under Section
  261.307. The department shall evaluate each person listed on the
  form 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 show cause [full adversary] hearing.
  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 in another state.
         (a-1)  At the show cause [full adversary] hearing under
  Section 262.201, the department shall, after redacting any social
  security numbers, file with the court:
               (1)  a copy of each proposed child placement resources
  form completed by the parent or other person having legal custody of
  the child;
               (2)  a copy of any completed home study performed under
  Subsection (a); and
               (3)  the name of the relative or other designated
  caregiver, if any, with whom the child has been placed.
         (a-2)  If the child has not been placed with a relative or
  other designated caregiver by the time of the show cause [full
  adversary] hearing under Section 262.201, the department shall file
  with the court a statement that explains:
               (1)  the reasons why the department has not placed the
  child with a relative or other designated caregiver listed on the
  proposed child placement resources form; and
               (2)  the actions the department is taking, if any, to
  place the child with a relative or other designated caregiver.
         SECTION 19.  The heading to Subchapter C, Chapter 262,
  Family Code, is amended to read as follows:
  SUBCHAPTER C. SHOW CAUSE [ADVERSARY] HEARING
         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.
         SECTION 21.  Section 262.202, Family Code, is amended to
  read as follows:
         Sec. 262.202.  IDENTIFICATION OF COURT OF CONTINUING,
  EXCLUSIVE JURISDICTION. If at the conclusion of the show cause
  [full adversary] hearing the court renders a temporary order, the
  governmental entity shall request identification of a court of
  continuing, exclusive jurisdiction as provided by Chapter 155.
         SECTION 22.  Section 263.0021(c), Family Code, is amended to
  read as follows:
         (c)  Notice of a hearing under this chapter may be given:
               (1)  as provided by Rule 21a, Texas Rules of Civil
  Procedure;
               (2)  in a temporary order following a show cause [full
  adversary] hearing;
               (3)  in an order following a hearing under this
  chapter;
               (4)  in open court; or
               (5)  in any manner that would provide actual notice to a
  person entitled to notice.
         SECTION 23.  Section 263.004(b), Family Code, is amended to
  read as follows:
         (b)  Not later than the fifth day after the date a show cause
  [an adversary] hearing under Section 262.201 [or 262.205] is
  concluded, the information required by Subsection (a) shall be
  filed with the court and a copy shall be provided to the school the
  child attends.
         SECTION 24.  Section 262.205, Family Code, is repealed.
         SECTION 25.  The changes in law made by this Act apply only
  to a suit affecting the parent-child relationship that is filed on
  or after the effective date of this Act. A suit filed before the
  effective date of this Act is governed by the law in effect on the
  date the suit is filed, and the former law is continued in effect
  for that purpose.
         SECTION 26.  This Act takes effect September 1, 2017.