BILL ANALYSIS

 

 

Senate Research Center	S.B. 2091
86R13055 MCK-F	By: Hughes
	Health & Human Services
	3/31/2019
	As Filed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

The Department of Family and Protective Services (DFPS) is tasked with protecting Texas children from maltreatment and carries out this mission by removing abused and/or neglected children from their homes. Since FY 2015, removals have increased by almost 21 percent. Research shows that children suffer trauma when they are removed from their homes and placed in foster care, so this should be done only when absolutely necessary. It is imperative that the statutory guidelines DFPS relies on for removing children and terminating parental rights be clear.

 

S.B. 2091 seeks to clarify standards in the Family Code related to the ability of DFPS to remove children from their families, to compel parents to comply with services, and to terminate parental rights in certain situations. Further, it defines activities that cannot be construed as child neglect, and requires DFPS and the courts to balance the immediate danger to a child's health and safety with the adverse effects to the child's mental or emotional health that may result from the removal of the child from the child's home. Finally, the bill aims to increase permanency for children and prevent them from unnecessarily lingering in the conservatorship of the state.

 

As proposed, S.B. 2091 amends current law relating to the procedures and grounds for terminating the parent-child relationship, 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 Sections 161.001(c) and (e), Family Code, as follows:

 

(c) Prohibits a court, in making a finding under Subsection (b) (relating to authorizing the court to order termination of the parent-child relationship if certain conditions are met) and ordering termination of the parent-child relationship, from considering evidence that the parent, rather than prohibits a court from making a finding under Subsection (b) and ordering termination of the parent‑child relationship based on evidence that the parent:

 

(1)�(3) makes no changes to these subdivisions;

 

(4)�(5) makes a nonsubstantive change;

 

(6) allowed a child, who is of sufficient maturity, physical condition, and mental ability to avoid substantial risk of physical harm, to engage in independent activities, including:

 

(A) traveling to and from the child's home and school, including by walking, running, or bicycling;

 

(B) traveling to and from the child's home and a commercial or recreational facility near to the child's home;

 

(C) engaging in outdoor play;

 

(D) remaining at the child's home unattended; or

 

(E) engaging in other age-appropriate normalcy activities as defined by Section 264.001 (Definitions).

 

(e) Provides that this section does not prohibit the Department of Family and Protective Services (DFPS) from offering evidence described by Subsection (c), for purposes other than a finding under Subsection (b), as part of an action to terminate the parent-child relationship under this subchapter (Grounds).

 

SECTION 2. Amends Section 161.101, Family Code, as follows:

 

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

 

(b) Provides that a petition or motion filed by DFPS is subject to Chapter 10 (Signing of Pleadings and Motions), Civil Practice and Remedies Code, and Rule 13, Texas Rules of Civil Procedure.

 

SECTION 3. Amends Section 261.004(4), Family Code, to redefine "neglect."

 

SECTION 4. Amends Section 262.001, Family Code, by adding Section (c) to require the court, in determining the reasonable efforts that are required to be made with respect to preventing or eliminating the need to remove a child from the child's home, to consider whether the immediate danger to the physical health and safety of the child outweighs the emotional distress or lasting adverse effects on the child's mental or emotional functioning that may result from removing the child from the child's home or parent.

 

SECTION 5. Amends Section 262.101, Family Code, as follows:

 

Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF CHILD. Requires an original suit filed by a governmental entity that requests permission to take possession of a child without prior notice and a hearing to 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) and (2) makes no changes to these subdivisions;

 

(3) and (4) makes nonsubstantive changes to these subdivisions;

 

(5) the immediate danger to the physical health and safety of the child outweighs the emotional distress or lasting adverse effects on the child's mental or emotional functioning that may result from removing the child from the child's home or parent.

 

SECTION 6. Amends Section 262.105(b), Family Code, to make conforming and nonsubstantive changes.�

 

SECTION 7. Amends Section 262.113(b), Family Code, to make conforming and nonsubstantive changes.

 

SECTION 8. Amends Section 262.116(a), Family Code, to make a conforming change.

 

SECTION 9. Amends Section 262.201, Family Code, to make a nonsubstantive change.

 

SECTION 10. Amends Section 262.201, Family Code, by amending Subsections (e-1), (g), (h), (j), and (n) and adding Subsections (g-1) and (n-1), as follows:

 

(e-1) Provides that a postponement under this subsection is subject to the limits and requirements prescribed by Subsection (e) and Section 155.207 (Transfer of Court Files).

 

(g) Makes nonsubstantive changes. Requires the court, in a suit under Section 262.101 (Filing Petition Before Taking Possession of a Child) or 262.105 (Filing Petition After Taking Possession of Child in Emergency), at the conclusion of the full adversary hearing, to order the return of the child to a parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds that, rather than unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:

 

(1) makes no changes to this subdivision;

 

(2) and (3) makes nonsubstantive changes to these subdivisions;

 

(4) the substantial risk of continuing danger to the physical health and safety of the child outweighs the emotional distress or lasting adverse effects on the child's mental or emotional functioning that may result from removing the child from the child's home or parent.

 

(g-1) Requires the court, in a suit filed under Section 262.101 or 262.105, if the court does not order the return of the child under Subsection (g) and finds that another parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession did not cause the immediate danger to the physical health or safety of the child or was not the perpetrator of the neglect or abuse alleged in the suit, grant possession of the child to that person unless the court finds, specific to each person entitled to possession, that the person cannot be located after the exercise of due diligence by DFPS or the person is unable or unwilling to take possession of the child or that granting possession of the child to that person presents a continuing danger to the physical health or safety of the child caused by an act or failure to act of the person, including a danger that the child would be a victim of trafficking under Section 20A.02 (Trafficking of Persons) or 20A.03 (Continuous Trafficking of Persons), Penal Code.

 

(h) Requires the court, in a suit filed under Section 262.101 or 262.105, if the court finds sufficient evidence that there is a continuing danger to the physical health or safety of the child, for the child to remain in the person's home is contrary to the welfare of the child, and the immediate danger to the physical health and safety of the child outweighs the emotional distress or lasting adverse effects on the child's mental or emotional functioning that may result from removing the child from the child's home or parent, to issue an appropriate temporary order under Chapter 105 (Settings, Hearings Before Final Order), rather than 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, for the child to remain in the person's home is contrary to the welfare of the child, and the immediate danger to the physical health and 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.

 

(j) Requires the court, in a suit filed under Section 262.113 (Filing Suit Without Taking Possession of Child), at the conclusion on the full adversary hearing, to issue an appropriate temporary order under Chapter 105 if the court finds, with respect to each parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession that, rather than if the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:

 

(1) and (2) makes nonsubstantive changes to these subdivisions; and

 

(3) the immediate danger to the physical health and safety of the child outweighs the emotional distress or lasting adverse effects on the child's mental or emotional functioning that may result from removing the child from the child's home or parent.

 

(n) Requires the court to place a child removed from the child's custodial parent with the child's noncustodial parent unless the court finds that placement with the noncustodial parent is not in the best interest of the child because the placement would significantly impair the child's physical health or emotional development, rather than requiring the court to 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.

 

(n-1) Requires the court, if the court does not place a child with a parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession under Subsection (g) or (g-1), to place the child with a relative of the child unless the court finds that the placement with a relative is not in the best interest of the child.

 

SECTION 11. Amends Sections 263.002, Family Code, by amending Subsection (c) and adding Subsection (d), as follows:

 

(c) Requires the court, at the end of each permanency hearing, to order DFPS to return the child to the child's parent or parents unless the court finds, with respect to each parent, that:

 

(1) there is a continuing danger to the physical health or safety of the child; and

 

(2) returning the child to the child's parent or parents is contrary to the welfare of the child

 

Deletes existing text requiring the court to make a finding on whether returning the child to the child's home is safe and appropriate, whether the return is in the best interest of the child, and whether it is contrary to the welfare of the child for the child to return home.

 

(d) Authorizes the court, if the court renders an order to return the child's parent or parents under Section 263.403 (Monitored Return of Child to Parent), to retain jurisdiction as provided by that section and not dismiss the suit or render a final order as required by Section 263.401 (Dismissal After One Year; New Trials; Extension).

 

SECTION 12. Amends Subchapter E, Chapter 263, Family Code, by adding Section 263.4011, as follows:

 

Section 263.4011. RENDERING FINAL ORDER; EXTENSION. (a) Requires the court, on timely commencement of the trial on the merits under Section 263.401, to render a final order not later than the 90th day after the date the trial commences.

 

(b) Provides that the 90-day period for rendering a final order under Subsection (a) is not tolled for any recess during the trial.

 

(c) Authorizes the court, if the court finds that extraordinary circumstances necessitate extending the 90-day period under Subsection (a), to extend that date for not longer than 30 days. Requires the court to render a written order specifying the grounds on which the extension is granted and requiring a final order to be rendered not later than the 30th day after the date the extension is granted.

 

(d) Authorizes a party to file a mandamus proceeding if the court fails to render a final order within the time required by this section.

 

SECTION 13. Amends Section 263.404(a), Family Code, as follows:

 

(a) Authorizes the court to ender a final order appointing DFPS as managing conservator of the child without terminating the rights of the parent of the child if the court finds that:

 

(1) and (2)� makes nonsubstantive changes to these subdivisions; and

 

(3) if the child has previously been in the conservatorship of DFPS, there is sufficient evidence to demonstrate that termination of parental rights to the child is not possible or not in the child's best interest.

 

SECTION 14. Amends Sections 263.501(a) and (b), Family Code, as follows:

 

(a) Requires the court, if the child's permanency goal is conservatorship with a relative or other designated caregiver that includes a permanency care assistance agreement with the DFPS, to conduct additional permanency hearings at least once every 90 days until an order dismissing DFPS as the child's conservator is rendered.

 

(b) Requires the court, if the child's permanency goal is adoption or conservatorship with a relative or other designated caregiver that includes a permanency care assistance agreement with DFPS, to conduct additional permanency hearings at least once every 90 days until an adoption order or an order dismissing DFPS as the child's conservator is rendered.

 

SECTION 15. Amends Section 264.203, Family Code, as follows:

 

Section 264.203. REQUIRED PARTICIPATION. (a) Authorizes DFPS to file a suit requesting the court to render a temporary order requiring the parent, managing conservator, guardian, or other members of the child's household to, rather than authorizing DFPS, except as provided by Subsection (d), to order the parent, managing conservator, guardian, or other member of the child's household to:

 

(1) participate in the services for which DFPS makes a referral or services DFPS provides or purchases for:

 

(A) makes no changes to this paragraph;

 

(B) reducing a continuing danger to the physical health or safety of the child caused by an act or failure to act of the parent, managing conservator, guardian, or other member of the child's household, rather than reducing the reasonable likelihood that the child may be abused or neglected in the immediate or foreseeable future; and

 

(2) makes no changes to this subdivision.

 

(b) Authorizes a suit requesting an order under this section to be filed in a court with jurisdiction to hear the suit in the county in which the child is located. Deletes existing text authorizing DFPS to� request the court to order the parent, managing conservator, guardian, or other member of the child's household to participate in the services whether the child resides in the home or has been removed from the home.

 

(c) Provides that except as otherwise provided by this subchapter, the suit is governed by the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit. Deletes existing text authorizing the court, if the person ordered to participate in the services fails to follow the court's order, to impose appropriate sanctions in order to protect the health and safety of the child, including the removal of the child as specified by Chapter 262 (Procedures in Suite by Governmental Entity to Protect Health and Safety of Child).

 

(d) Requires the petition to be supported by an affidavit by a person based on personal knowledge or the person's belief based on representations made to the person by a person with personal knowledge and stating facts sufficient to support a finding that the child has been a victim of abuse or neglect or is at substantial risk of abuse or neglect and that there is a continuing danger to the physical health or safety of the child caused by an act or failure to act of the parent, managing conservator, guardian, or other member of the child's household unless that person participates in services requested by DFPS. Requires the court in writing, if the court does not order the person to participate, to specify the reasons for not ordering participation.

 

(e) Authorizes the court, in a suit filed under this section, to render a temporary restraining order as provided by Section 105.001 (Temporary Orders Before Final Order).

 

(f) Requires the court to hold a hearing on the petition not later than the 14th day after the date the petition is filed.

 

(g) Requires the court to appoint an attorney ad litem to represent the interests of the child immediately after the filing but before the hearing to ensure adequate representation of the child. Requires the attorney ad litem for the child to have the powers and duties of an attorney ad litem for a child under Chapter 107 (Special Appointments, Child Custody Evaluations, and Adoption Evaluations).

 

(h) Requires the court to appoint an attorney ad litem to represent the interests of a parent for whom participation in services is being requested immediately after the filing but before the hearing to ensure adequate representation of the parent. Requires the attorney ad litem for the parent to have the powers and duties of an attorney ad litem for a parent under Section 107.0131 (Powers and Duties of Attorney Ad Litem For Parent).

 

(i) Requires the court, before commencement of the hearing, to inform each parents of certain information.

 

(j) Requires the court, if a parent claims indigence, to require the parent to complete and file with the court an affidavit of indigence. Authorizes the court to 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. Authorizes the attorney ad litem appointed to represent the interests of the parent, if the court determines the parents is indigent, to continue the representation. Requires the court, if the court determines the parent is not indigent, to discharge the attorney ad litem from the appointment after the hearing.

 

(k) Authorizes the court, for good cause shown, to postpone any subsequent proceedings for not more than seven days after the date of the attorney ad litem's discharge to allow the parent to hire an attorney or to provide the parent's attorney time to prepare for the subsequent proceeding.

 

(l) Prohibits an order from being rendered under this section except after notice and hearing.

 

(m) Requires the court, at the conclusion of the hearing, to deny the petition unless the court finds by a preponderance of evidence that abuse or neglect has occurred or 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 and that services to the family are necessary to ensure the safety of the child.

 

(n) Requires the court, if the court finds sufficient evidence under Subsection (m), to:

 

(1) state its findings of fact in the order;

 

(2) make appropriate temporary orders under Chapter 105 necessary to ensure the safety of the child; and

 

(3) order the participation in specific services narrowly tailored to address the findings made by the court under Subsection (m).

 

(o) Requires the court, not later than the 60th day after the date the court renders an order under this section, to hold a status hearing to review the status of each party and the child and the services provided, purchased, or referred for the family. Requires the court to set subsequent review hearings every 60 days to review the continued need for the order.

 

(p) Provides that an order rendered under this section expires on the 180th day after the date the order is signed unless it is renewed as provided by Subsection (q).

 

(q) Authorizes the court to renew an order rendered under this section on a showing by DFPS of a continuing need for the order, after notice and hearing. Authorizes the order to be renewed only one time for not longer than 180 days.

 

(r) Authorizes any party affected by the order, at any time, to request the court to terminate the order. Requires the court to terminate the order on a finding that there is no longer need for the order.

 

SECTION 16. Repealer: Section 262.201(a-5) (relating to legal representation of a parent in an adversary hearing), Family Code.

 

SECTION 17. Makes application of this Act prospective.

 

SECTION 18. Provides that to the extent of any conflict, this Act prevails over another Act of the 86th Legislature, Regular Session, 2019, relating to nonsubstantive additions to and corrections in enacted codes.

 

SECTION 19. Effective date: October 1, 2019.