| |
| |
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A BILL TO BE ENTITLED
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AN ACT
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relating to the procedures and grounds for terminating the |
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|
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. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 161.001(c), Family Code, is amended to |
|
|
read as follows: |
|
|
(c) Evidence of one or more of the following does not |
|
|
constitute clear and convincing evidence sufficient for a court to |
|
|
[A court may not] make a finding under Subsection (b) and order |
|
|
termination of the parent-child relationship [based on evidence |
|
|
that the parent]: |
|
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(1) the parent homeschooled the child; |
|
|
(2) the parent is economically disadvantaged; |
|
|
(3) the parent has been charged with a nonviolent |
|
|
misdemeanor offense other than: |
|
|
(A) an offense under Title 5, Penal Code; |
|
|
(B) an offense under Title 6, Penal Code; or |
|
|
(C) an offense that involves family violence, as |
|
|
defined by Section 71.004 of this code; |
|
|
(4) the parent provided or administered low-THC |
|
|
cannabis to a child for whom the low-THC cannabis was prescribed |
|
|
under Chapter 169, Occupations Code; [or] |
|
|
(5) the parent declined immunization for the child for |
|
|
reasons of conscience, including a religious belief; or |
|
|
(6) the parent allowed the child to engage in |
|
|
independent activities that are appropriate and typical for the |
|
|
child's level of maturity, physical condition, developmental |
|
|
abilities, or culture. |
|
|
SECTION 2. Section 161.101, Family Code, is amended to read |
|
|
as follows: |
|
|
Sec. 161.101. PETITION ALLEGATIONS; PETITION AND MOTION |
|
|
REQUIREMENTS. (a) A petition for the termination of the |
|
|
parent-child relationship is sufficient without the necessity of |
|
|
specifying the underlying facts if the petition alleges in the |
|
|
statutory language the ground for the termination and that |
|
|
termination is in the best interest of the child. |
|
|
(b) A petition or motion filed by the Department of Family |
|
|
and Protective Services in a suit for termination of the |
|
|
parent-child relationship is subject to Chapter 10, Civil Practice |
|
|
and Remedies Code, and Rule 13, Texas Rules of Civil Procedure. |
|
|
SECTION 3. Section 261.001(4), Family Code, is amended to |
|
|
read as follows: |
|
|
(4) "Neglect" means an act or failure to act by a |
|
|
person responsible for a child's care, custody, or welfare |
|
|
evidencing the person's blatant disregard for the consequences of |
|
|
the act or failure to act that results in harm to the child or that |
|
|
creates an immediate danger to the child's physical health or |
|
|
safety and: |
|
|
(A) includes: |
|
|
(i) the leaving of a child in a situation |
|
|
where the child would be exposed to an immediate danger [a |
|
|
substantial risk] of physical or mental harm, without arranging for |
|
|
necessary care for the child, and the demonstration of an intent not |
|
|
to return by a parent, guardian, or managing or possessory |
|
|
conservator of the child; |
|
|
(ii) the following acts or omissions by a |
|
|
person: |
|
|
(a) placing a child in or failing to |
|
|
remove a child from a situation that a reasonable person would |
|
|
realize requires judgment or actions beyond the child's level of |
|
|
maturity, physical condition, or mental abilities and that results |
|
|
in bodily injury or an immediate danger [a substantial risk] of |
|
|
[immediate] harm to the child; |
|
|
(b) failing to seek, obtain, or follow |
|
|
through with medical care for a child, with the failure resulting in |
|
|
or presenting an immediate danger [a substantial risk] of death, |
|
|
disfigurement, or bodily injury or with the failure resulting in an |
|
|
observable and material impairment to the growth, development, or |
|
|
functioning of the child; |
|
|
(c) the failure to provide a child |
|
|
with food, clothing, or shelter necessary to sustain the life or |
|
|
health of the child, excluding failure caused primarily by |
|
|
financial inability unless relief services had been offered and |
|
|
refused; |
|
|
(d) placing a child in or failing to |
|
|
remove the child from a situation in which the child would be |
|
|
exposed to an immediate danger [a substantial risk] of sexual |
|
|
conduct harmful to the child; or |
|
|
(e) placing a child in or failing to |
|
|
remove the child from a situation in which the child would be |
|
|
exposed to acts or omissions that constitute abuse under |
|
|
Subdivision (1)(E), (F), (G), (H), or (K) committed against another |
|
|
child; |
|
|
(iii) the failure by the person responsible |
|
|
for a child's care, custody, or welfare to permit the child to |
|
|
return to the child's home without arranging for the necessary care |
|
|
for the child after the child has been absent from the home for any |
|
|
reason, including having been in residential placement or having |
|
|
run away; or |
|
|
(iv) a negligent act or omission by an |
|
|
employee, volunteer, or other individual working under the auspices |
|
|
of a facility or program, including failure to comply with an |
|
|
individual treatment plan, plan of care, or individualized service |
|
|
plan, that causes or may cause substantial emotional harm or |
|
|
physical injury to, or the death of, a child served by the facility |
|
|
or program as further described by rule or policy; and |
|
|
(B) does not include: |
|
|
(i) the refusal by a person responsible for |
|
|
a child's care, custody, or welfare to permit the child to remain in |
|
|
or return to the child's home resulting in the placement of the |
|
|
child in the conservatorship of the department if: |
|
|
(a) [(i)] the child has a severe |
|
|
emotional disturbance; |
|
|
(b) [(ii)] the person's refusal is |
|
|
based solely on the person's inability to obtain mental health |
|
|
services necessary to protect the safety and well-being of the |
|
|
child; and |
|
|
(c) [(iii)] the person has exhausted |
|
|
all reasonable means available to the person to obtain the mental |
|
|
health services described by Sub-subparagraph (b); or |
|
|
(ii) allowing the child to engage in |
|
|
independent activities that are appropriate and typical for the |
|
|
child's level of maturity, physical condition, developmental |
|
|
abilities, or culture [Subparagraph (ii)]. |
|
|
SECTION 4. Section 262.116(a), Family Code, is amended to |
|
|
read as follows: |
|
|
(a) The Department of Family and Protective Services may not |
|
|
take possession of a child under this subchapter based on evidence |
|
|
that the parent: |
|
|
(1) homeschooled the child; |
|
|
(2) is economically disadvantaged; |
|
|
(3) has been charged with a nonviolent misdemeanor |
|
|
offense other than: |
|
|
(A) an offense under Title 5, Penal Code; |
|
|
(B) an offense under Title 6, Penal Code; or |
|
|
(C) an offense that involves family violence, as |
|
|
defined by Section 71.004 of this code; |
|
|
(4) provided or administered low-THC cannabis to a |
|
|
child for whom the low-THC cannabis was prescribed under Chapter |
|
|
169, Occupations Code; [or] |
|
|
(5) declined immunization for the child for reasons of |
|
|
conscience, including a religious belief; or |
|
|
(6) allowed the child to engage in independent |
|
|
activities that are appropriate and typical for the child's level |
|
|
of maturity, physical condition, developmental abilities, or |
|
|
culture. |
|
|
SECTION 5. Section 262.201, Family Code, is amended by |
|
|
amending Subsections (g), (h), (j), and (n) and adding Subsections |
|
|
(g-1), (j-1), and (q) to read as follows: |
|
|
(g) In a suit filed under Section 262.101 or 262.105, 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 from whom the child is removed 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. |
|
|
(g-1) 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, the court shall order |
|
|
possession of the child by that person unless the court finds, |
|
|
specific to each person entitled to possession, that: |
|
|
(1) the person cannot be located after the exercise of |
|
|
due diligence by the Department of Family and Protective Services, |
|
|
or the person is unable or unwilling to take possession of the |
|
|
child; or |
|
|
(2) reasonable efforts have been made to enable the |
|
|
person's possession of the child, but possession by 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 or 20A.03, Penal Code. |
|
|
(h) In a suit filed under Section 262.101 or 262.105, if the |
|
|
court finds sufficient evidence to make the applicable finding |
|
|
under Subsection (g) or (g-1) [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, with respect |
|
|
to the parent, managing conservator, possessory conservator, |
|
|
guardian, caretaker, or custodian entitled to possession from whom |
|
|
the Department of Family and Protective Services is seeking |
|
|
removal, [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 person's 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. |
|
|
(j-1) In a suit filed under Section 262.113, if the court |
|
|
orders the removal of the child under Subsection (j) and finds that |
|
|
another parent, managing conservator, possessory conservator, |
|
|
guardian, caretaker, or custodian entitled to possession did not |
|
|
cause the continuing danger to the physical health or safety of the |
|
|
child or was not the perpetrator of the neglect or abuse alleged in |
|
|
the suit, the court shall order possession of the child by that |
|
|
person unless the court finds, specific to each person entitled to |
|
|
possession, that: |
|
|
(1) the person cannot be located after the exercise of |
|
|
due diligence by the Department of Family and Protective Services |
|
|
or the person is unable or unwilling to take possession of the |
|
|
child; or |
|
|
(2) reasonable efforts have been made to enable the |
|
|
person's possession of the child, but possession by 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 or 20A.03, Penal Code. |
|
|
(n) If the [The] court does not order possession of [shall |
|
|
place] a child by a [removed from the child's custodial parent with |
|
|
the child's noncustodial] parent, managing conservator, possessory |
|
|
conservator, guardian, caretaker, or custodian entitled to |
|
|
possession under Subsection (g), (g-1), (j), or (j-1), the court |
|
|
shall place the child [or] with a relative of the child [if |
|
|
placement with the noncustodial parent is inappropriate,] unless |
|
|
the court finds that the placement with [the noncustodial parent |
|
|
or] a relative is not in the best interest of the child. |
|
|
(q) On receipt of a written request for possession of the |
|
|
child from a parent, managing conservator, possessory conservator, |
|
|
guardian, caretaker, or custodian entitled to possession of the |
|
|
child who was not located before the adversary hearing, the |
|
|
Department of Family and Protective Services shall notify the court |
|
|
and request a hearing to determine whether the parent, managing |
|
|
conservator, possessory conservator, guardian, caretaker, or |
|
|
custodian is entitled to possession of the child under Subsection |
|
|
(g-1) or (j-1). |
|
|
SECTION 6. Section 263.002, Family Code, is amended by |
|
|
amending Subsection (c) and adding Subsection (d) to read as |
|
|
follows: |
|
|
(c) At each permanency hearing before the final order, the |
|
|
court shall review the placement of each child in the temporary |
|
|
managing conservatorship of the department who has not been |
|
|
returned to the child's home. At the end of the hearing, the court |
|
|
shall order the department 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 [The court shall 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) This section does not prohibit the court from rendering |
|
|
an order under Section 263.403. |
|
|
SECTION 7. Subchapter E, Chapter 263, Family Code, is |
|
|
amended by adding Section 263.4011 to read as follows: |
|
|
Sec. 263.4011. RENDERING FINAL ORDER; EXTENSION. (a) On |
|
|
timely commencement of the trial on the merits under Section |
|
|
263.401, the court shall render a final order not later than the |
|
|
90th day after the date the trial commences. |
|
|
(b) The 90-day period for rendering a final order under |
|
|
Subsection (a) is not tolled for any recess during the trial. |
|
|
(c) If the court finds that extraordinary circumstances |
|
|
necessitate extending the 90-day period under Subsection (a), the |
|
|
court may grant one extension of that date for not longer than 30 |
|
|
days. The court shall render a written order: |
|
|
(1) specifying the grounds on which the extension is |
|
|
granted; and |
|
|
(2) requiring a final order to be rendered not later |
|
|
than the 30th day after the date the extension is granted. |
|
|
(d) A party may file a mandamus proceeding if the court |
|
|
fails to render a final order within the time required by this |
|
|
section. |
|
|
SECTION 8. Section 263.403(a-1), Family Code, is amended to |
|
|
read as follows: |
|
|
(a-1) Unless the court has granted an extension under |
|
|
Section 263.401(b), the department or the parent may request the |
|
|
court to retain jurisdiction for an additional six months as |
|
|
necessary for a parent to complete the remaining requirements under |
|
|
[in] a service plan [and specified] in a transition monitored |
|
|
return under Subsection (a)(2)(B) [the temporary order that are |
|
|
mandatory for the child's return]. |
|
|
SECTION 9. Section 264.203, Family Code, is amended to read |
|
|
as follows: |
|
|
Sec. 264.203. REQUIRED PARTICIPATION. (a) The department |
|
|
may file a suit requesting [Except as provided by Subsection (d),] |
|
|
the court to render a temporary [on request of the department may] |
|
|
order requiring the parent, managing conservator, guardian, or |
|
|
other member of the [subject] child's household to: |
|
|
(1) participate in the services for which the |
|
|
department makes a referral or services the department provides or |
|
|
purchases for: |
|
|
(A) alleviating the effects of the abuse or |
|
|
neglect that has occurred; [or] |
|
|
(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 [the reasonable likelihood that the child may be |
|
|
abused or neglected in the immediate or foreseeable future]; or |
|
|
(C) reducing a substantial risk of abuse or |
|
|
neglect caused by an act or failure to act of the parent, managing |
|
|
conservator, guardian, or member of the child's household; and |
|
|
(2) permit the child and any siblings of the child to |
|
|
receive the services. |
|
|
(b) A suit requesting an order under this section may be |
|
|
filed in a court with jurisdiction to hear the suit in the county in |
|
|
which the child is located [The department may 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) 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 [If the person ordered to |
|
|
participate in the services fails to follow the court's order, the |
|
|
court may 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]. |
|
|
(d) The petition shall be supported by a sworn affidavit by |
|
|
a person based on personal knowledge and stating facts sufficient |
|
|
to support a finding that: |
|
|
(1) the child has been a victim of abuse or neglect or |
|
|
is at substantial risk of abuse or neglect; and |
|
|
(2) 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 the department [If the court does not order the person |
|
|
to participate, the court in writing shall specify the reasons for |
|
|
not ordering participation]. |
|
|
(e) In a suit filed under this section, the court may render |
|
|
a temporary restraining order as provided by Section 105.001. |
|
|
(f) The court shall hold a hearing on the petition not later |
|
|
than the 14th day after the date the petition is filed unless the |
|
|
court finds good cause for extending that date for not more than 14 |
|
|
days. |
|
|
(g) The court shall 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. The attorney ad litem for the child shall have the powers |
|
|
and duties of an attorney ad litem for a child under Chapter 107. |
|
|
(h) The court shall 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. The |
|
|
attorney ad litem for the parent shall have the powers and duties of |
|
|
an attorney ad litem for a parent under Section 107.0131. |
|
|
(i) Before commencement of the hearing, the court shall |
|
|
inform each parent of: |
|
|
(1) the parent's right to be represented by an |
|
|
attorney; and |
|
|
(2) for a parent who is indigent and appears in |
|
|
opposition to the motion, the parent's right to a court-appointed |
|
|
attorney. |
|
|
(j) If a parent claims indigence, 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 |
|
|
court determines the parent is indigent, the attorney ad litem |
|
|
appointed to represent the interests of the parent may continue the |
|
|
representation. If the court determines the parent is not |
|
|
indigent, the court shall discharge the attorney ad litem from the |
|
|
appointment after the hearing and shall order the parent to pay the |
|
|
cost of the attorney ad litem's representation. |
|
|
(k) The court may, for good cause shown, 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) An order may be rendered under this section only after |
|
|
notice and hearing. |
|
|
(m) At the conclusion of the hearing, the court shall deny |
|
|
the petition unless the court finds by a preponderance of evidence |
|
|
that: |
|
|
(1) abuse or neglect has occurred or there is a |
|
|
substantial risk of abuse or neglect or 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; and |
|
|
(2) services are necessary to ensure the physical |
|
|
health or safety of the child. |
|
|
(n) If the court renders an order granting the petition, the |
|
|
court shall: |
|
|
(1) state its findings 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). |
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|
(o) If the court finds that a parent, managing conservator, |
|
|
guardian, or other member of the child's household did not cause the |
|
|
continuing danger to the physical health or safety of the child or |
|
|
the substantial risk of abuse or neglect, or was not the perpetrator |
|
|
of the abuse or neglect alleged, the court may not require that |
|
|
person to participate in services ordered under Subsection (n). |
|
|
(p) Not later than the 90th day after the date the court |
|
|
renders an order under this section, the court shall hold a hearing |
|
|
to review the status of each person required to participate in the |
|
|
services and the child and the services provided, purchased, or |
|
|
referred. The court shall set subsequent review hearings every 90 |
|
|
days to review the continued need for the order. |
|
|
(q) An order rendered under this section expires on the |
|
|
180th day after the date the order is signed unless the court |
|
|
extends the order as provided by Subsection (r) or (s). |
|
|
(r) The court may extend an order rendered under this |
|
|
section on a showing by the department of a continuing need for the |
|
|
order, after notice and hearing. Except as provided by Subsection |
|
|
(s), the court may extend the order only one time for not more than |
|
|
180 days. |
|
|
(s) The court may extend an order rendered under this |
|
|
section for not more than an additional 180 days only if: |
|
|
(1) the court finds that: |
|
|
(A) the extension is necessary to allow the |
|
|
person required to participate in services under the plan of |
|
|
service time to complete those services; |
|
|
(B) the department made a good faith effort to |
|
|
timely provide the services to the person; |
|
|
(C) the person made a good faith effort to |
|
|
complete the services; and |
|
|
(D) the completion of the services is necessary |
|
|
to ensure the physical health and safety of the child; and |
|
|
(2) the extension is requested by the person or the |
|
|
person's attorney. |
|
|
(t) At any time, a person affected by the order may request |
|
|
the court to terminate the order. The court shall terminate the |
|
|
order on finding the order is no longer needed. |
|
|
SECTION 10. Section 161.101, Family Code, as amended by |
|
|
this Act, applies only to a petition or motion filed by the |
|
|
Department of Family and Protective Services on or after the |
|
|
effective date of this Act. A petition or motion filed by the |
|
|
department before that date is governed by the law in effect on the |
|
|
date the petition or motion was filed, and the former law is |
|
|
continued in effect for that purpose. |
|
|
SECTION 11. The changes in law made by this Act apply only |
|
|
to a suit filed by the Department of Family and Protective Services |
|
|
on or after the effective date of this Act. A suit filed by the |
|
|
department before that date is governed by the law in effect on the |
|
|
date the suit was filed, and the former law is continued in effect |
|
|
for that purpose. |
|
|
SECTION 12. This Act takes effect September 1, 2021. |