81R636 MCK-D
By: Dutton H.B. No. 948
A BILL TO BE ENTITLED
AN ACT
relating to investigations and other procedures with respect to
allegations of child abuse and neglect.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 261.103, Family Code, is amended by
adding Subsection (d) to read as follows:
(d) The department or other entity receiving a report of
abuse or neglect shall maintain an audio recording of each report
made over the telephone.
SECTION 2. Section 261.302, Family Code, is amended by
amending Subsections (a) and (f) and adding Subsections (e-1),
(e-2), and (e-3) to read as follows:
(a) The investigation may include:
(1) a visit to the child's home, unless the alleged
abuse or neglect can be confirmed or clearly ruled out without a
home visit; and
(2) an interview with and examination of the subject
child, any other child in the home, or the child's parents, which
may include a medical, psychological, or psychiatric examination as
authorized by Subsection (e-1).
(e-1) Except as provided by Subsection (e-2), an
investigation that includes an examination of the subject child or
any other child in the household may not include a medical,
psychological, or psychiatric examination of the child unless:
(1) the child's parent, conservator, or legal guardian
consents in writing to the examination; or
(2) the department obtains a court order for the
medical, psychological, or psychiatric examination.
(e-2) If during the investigation a department investigator
believes that a child needs emergency medical attention before a
representative of a law enforcement agency is able to arrive, the
investigator may obtain medical assistance for the child from
emergency medical services personnel, as defined by Section
773.003, Health and Safety Code.
(e-3) This section does not limit the authority of a law
enforcement agency to perform its duties under any other law.
(f) A person commits an offense if the person is notified of
the time of the transport of a child by the department and the
location from which the transport is initiated and the person is
present at the location when the transport is initiated and
attempts to interfere with the department's investigation. An
offense under this subsection is a Class B misdemeanor. It is an
exception to the application of this subsection that the department
requested the person to be present at the site of the transport.
This subsection only applies when the department has taken custody
of a child under Section 262.104, an ongoing court-ordered
investigation is being conducted, or the child's parent,
conservator, or legal guardian has consented to the transport.
SECTION 3. Section 261.3021, Family Code, is amended to
read as follows:
Sec. 261.3021. CASEWORK DOCUMENTATION AND MANAGEMENT. (a)
Subject to the appropriation of money for these purposes, the
department shall:
(1) identify critical investigation actions that
impact child safety and require department caseworkers to document
those actions in a child's case file not later than the day after
the action occurs;
(2) identify and develop a comprehensive set of
casework quality indicators that must be reported in real time to
support timely management oversight;
(3) provide department supervisors with access to
casework quality indicators and train department supervisors on the
use of that information in the daily supervision of caseworkers;
(4) develop a case tracking system that notifies
department supervisors and management when a case is not
progressing in a timely manner;
(5) use current data reporting systems to provide
department supervisors and management with easier access to
information; and
(6) train department supervisors and management on the
use of data to monitor cases and make decisions.
(b) The department shall record and maintain all interviews
and documents pertaining to an investigation, including original
notes.
SECTION 4. Section 261.307(a), Family Code, is amended to
read as follows:
(a) As soon as possible after initiating an investigation of
a parent or other person having legal custody of a child, the
department shall provide to the person:
(1) a summary that:
(A) is brief and easily understood;
(B) is written in a language that the person
understands, or if the person is illiterate, is read to the person
in a language that the person understands; and
(C) contains the following information:
(i) the department's procedures for
conducting an investigation of alleged child abuse or neglect,
including:
(a) a description of the
circumstances under which the department would request to remove
the child from the home through the judicial system; and
(b) an explanation that the law
requires the department to refer all reports of alleged child abuse
or neglect to a law enforcement agency for a separate determination
of whether a criminal violation occurred;
(ii) the person's right to file a complaint
with the department or to request a review of the findings made by
the department in the investigation;
(iii) the person's right to review all
records of the investigation unless the review would jeopardize an
ongoing criminal investigation or the child's safety;
(iv) the person's right to seek legal
counsel;
(v) references to the statutory and
regulatory provisions governing child abuse and neglect and how the
person may obtain copies of those provisions; and
(vi) the process the person may use to
acquire access to the child if the child is removed from the home;
(2) if the department determines that removal of the
child may be warranted, a proposed child placement resources form
that:
(A) instructs the parent or other person having
legal custody of the child to:
(i) complete and return the form to the
department or agency; and
(ii) identify in the form three individuals
who reside in the state within 100 miles from the child's primary
residence who could serve as [be] relative caregivers or designated
caregivers, as those terms are defined by Section 264.751, before a
suit affecting the parent-child relationship is filed and until the
suit is dismissed; and
(B) informs the parent or other person of a
location that is available to the parent or other person to submit
the information in the form 24 hours a day either in person or by
facsimile machine or e-mail; and
(3) an informational manual required by Section
261.3071.
SECTION 5. Section 261.309, Family Code, is amended by
amending Subsection (d) and adding Subsections (b-1), (c-1), (c-2),
and (e-1) to read as follows:
(b-1) The immediate supervisor shall submit a written
report at the conclusion of the informal review under Subsection
(b). The report must summarize the person's case or complaint and
contain the supervisor's findings relating to the person's case or
complaint. The department shall make the written report available
to the person under investigation.
(c-1) At the administrative review under Subsection (c),
the person conducting the review for the department shall allow the
person challenging the findings to question the investigative
workers and immediate supervisors who developed the department's
findings. The department may postpone the administrative review for
not more than 30 days to ensure attendance of necessary
investigative workers and immediate supervisors.
(c-2) The department shall make an audio recording of the
administrative review and preserve the recording until the first
anniversary of the date the administrative review concludes. The
department shall make the audio recording available to any party
involved in the review not later than the 10th day after the date
the person requests access to the recording.
(d) Unless a civil or criminal court proceeding or an
ongoing criminal investigation relating to the alleged abuse or
neglect investigated by the department is pending, the department
employee shall conduct the review prescribed by Subsection (c) as
soon as possible but not later than the 45th day after the date the
department receives the request. If a civil court proceeding
initiated by the department, a [or] criminal court proceeding, or
an ongoing criminal investigation is pending, the department may
postpone the review until the court proceeding is completed. The
department shall conduct the review not later than the 45th day
after the date the court proceeding or investigation is completed.
(e-1) A person under investigation for allegedly abusing or
neglecting the person's child is not subject to, and cannot be
required to submit to, the jurisdiction of the State Office of
Administrative Hearings in any proceeding in connection to the
alleged abuse or neglect.
SECTION 6. Section 261.310(d), Family Code, is amended to
read as follows:
(d) The standards shall:
(1) recommend that videotaped and audiotaped
interviews be uninterrupted;
(2) recommend a maximum number of interviews with and
examinations of a suspected victim;
(3) provide procedures to preserve evidence,
including the original audio recordings of the intake telephone
calls, original notes, videotapes, and other audiotapes, for one
year from the later of the date the evidence is created or the date
of a final judgment in a case for which the evidence is created; and
(4) provide that an investigator of suspected child
abuse or neglect make a reasonable effort to locate and inform each
parent of a child of any report of abuse or neglect relating to the
child.
SECTION 7. Sections 262.112(a) and (b), Family Code, are
amended to read as follows:
(a) The Department of Family and Protective [and
Regulatory] Services and the parent, conservator, or legal guardian
of a child are [is] entitled to an expedited hearing under this
chapter in any proceeding in which a hearing is required if the
department determines that a child should be removed from the
child's home because of an immediate danger to the physical health
or safety of the child.
(b) In any proceeding in which an expedited hearing is held
under Subsection (a), the department, parent, conservator,
guardian, or other party to the proceeding is entitled to an
expedited appeal on a ruling by a court that the child may or may not
be removed from the child's home.
SECTION 8. Section 262.114, Family Code, is amended to read
as follows:
Sec. 262.114. EVALUATION OF IDENTIFIED RELATIVES AND OTHER
DESIGNATED INDIVIDUALS; PLACEMENT. (a) If a governmental entity
determines, after completing an investigation, that a child should
be removed from the child's home and placed in the custody of the
Department of Family and Protective Services, the department shall,
on receiving the child placement resources form as provided under
Section 261.307, [Before a full adversary hearing under Subchapter
C, the Department of Family and Protective Services must]
immediately perform a background and criminal history check of:
(1) the relatives or other designated individuals
identified as a potential relative or designated caregiver, as
defined by Section 264.751; and
(2) each person over 18 years of age who resides in the
designated person's household [, on the proposed child placement
resources form provided under Section 261.307].
(a-1) The department shall evaluate each person listed on
the form by the standards outlined in Section 262.115 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 full adversary hearing].
(a-2) The right of the parent, conservator, or legal
guardian of the child to designate the person with whom the child is
placed continues until the date the suit affecting the parent-child
relationship is dismissed. The parent, conservator, or legal
guardian may change the person designated on the child placement
resources form as a relative or designated caregiver. The
department shall place the child with the person subsequently
designated as a relative or designated caregiver, if the child is
removed from the care of a person who was previously designated.
(a-3) If the parent, conservator, or legal guardian fails to
designate [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 more than 100 miles from the
child's primary residence [in another state].
(b) [The department may place a child with a relative or
other designated individual identified on the proposed child
placement resources form if the department determines that the
placement is in the best interest of the child.] The department may
place the child with the relative or designated individual before
conducting the background and criminal history check or home study
required under Subsection (a). The department shall provide a copy
of an informational manual required under Section 261.3071 to the
relative or other designated caregiver at the time of the child's
placement.
(c) The department shall provide the mother of a child who
is breast-feeding with scheduled visitation periods at appropriate
intervals to allow the mother to continue breast-feeding the child,
unless the court finds after a hearing that the mother is not fit
for these visitation periods.
(d) At each hearing conducted in a suit affecting the
parent-child relationship filed under this chapter, the court shall
inform the child's parent, conservator, or legal guardian orally
and in writing of that person's right to designate a relative or
designated caregiver with whom the child is placed.
SECTION 9. Subchapter B, Chapter 262, Family Code, is
amended by adding Section 262.115 to read as follows:
Sec. 262.115. LIMITATION ON PLACEMENT WITH DESIGNATED
PERSON. (a) Except as provided by Subsection (c), the department
may not place a child with a person designated by the child's
parent, conservator, or legal guardian under Section 262.114 if the
department determines that:
(1) the placement would expose the child to immediate
danger to the child's physical health or safety; or
(2) the designated person or another person in the
designated person's household:
(A) is listed in the department's statewide
central registry system with a finding that the department
confirmed, had reason to believe, or could not determine that the
person abused or neglected a child;
(B) is the subject of a report of child abuse or
neglect being investigated by the department;
(C) has been found to have committed family
violence and is or has been the subject of a protective order
rendered under Title 4;
(D) has been convicted of a felony, is under
indictment for or charged with an offense punishable as a felony, or
is under investigation by a state or federal law enforcement agency
for an offense punishable as a felony; or
(E) has previously voluntarily relinquished
parental rights as the result of an allegation of child abuse or
neglect.
(b) A law enforcement agency in this state, on request by
the department, shall assist in conducting a criminal background
check on a designated person or any other person in the designated
person's household.
(c) The department may place a child with a person described
by Subsection (a) if the department determines that placement of
the child with the designated person will not endanger the child.
(d) If the department determines that the designated person
under Section 262.114 is not an appropriate placement for the
child, the department shall immediately provide the parent,
conservator, or legal guardian with written notice stating the
specific facts leading to the department's objections to the
placement. The parent, conservator, or legal guardian may
challenge the department's placement decision by filing a motion
for a hearing before the court. The court shall render an order
regarding placement of the child after hearing testimony from the
parties. The court may approve the placement of the child with the
designated person and order any modification the court determines
necessary to address the department's written objections.
SECTION 10. Sections 263.103(a) and (d), Family Code, are
amended to read as follows:
(a) Before the service plan is signed, the child's parents
and the representative of the department or other agency shall
discuss each term and condition of the plan. The representative
shall inform the parents that the service plan is voluntary and can
only be made mandatory by the department if a suit affecting the
parent-child relationship has been filed and the department has
obtained court authorization.
(d) The plan takes effect when[:
[(1)] the child's parents and the appropriate
representative of the department or other authorized agency sign
the plan. If the child's parents refuse to sign the plan, a motion
may be filed by any party for a hearing at which the court shall
either accept the plan or modify the plan based on the testimony of
the parties[; or
[(2) the department or other authorized agency files
the plan without the parents' signatures].
SECTION 11. Section 264.751(1), Family Code, is amended to
read as follows:
(1) "Designated caregiver" means an individual
qualified under Section 262.114 [who has a longstanding and
significant relationship with a child for whom the department has
been appointed managing conservator and] who:
(A) is appointed to provide substitute care for
the child, but is not licensed or certified to operate a foster
home, foster group home, agency foster home, or agency foster group
home under Chapter 42, Human Resources Code; or
(B) is subsequently appointed permanent managing
conservator of the child after providing the care described by
Paragraph (A).
SECTION 12. Section 264.753, Family Code, is amended to
read as follows:
Sec. 264.753. EXPEDITED PLACEMENT. Because there is a
rebuttable presumption that placing a child in the care of a person
designated by the child's parent, conservator, or legal guardian is
in the child's best interest, the [The] department or other
authorized entity shall expedite the completion of the background
and criminal history check according to Section 262.114[, the home
study,] and any other administrative procedure to ensure that the
child is placed with a qualified relative or caregiver as soon as
possible after the date the caregiver is identified.
SECTION 13. Section 264.754, Family Code, is amended to
read as follows:
Sec. 264.754. INVESTIGATION OF [PROPOSED] PLACEMENT OF
CHILD WITH DESIGNATED CAREGIVER. After [Before] placing a child
with a proposed relative or other designated caregiver under the
standards of Sections 262.114 and 262.115, the department may
[must] conduct a comprehensive [an] investigation, including a home
study, to determine whether the designated [proposed] placement
meets the minimum standards for the health and safety of the child.
There is a rebuttable presumption that a placement with a
designated caregiver is in the child's best interest.
SECTION 14. Section 261.302(c), Family Code, is repealed.
SECTION 15. The changes in law made by this Act apply only
to an investigation of a report of child abuse or neglect that is
made, or a suit affecting the parent-child relationship that is
commenced, on or after the effective date of this Act. A report
that is made or a suit that is commenced before the effective date
of this Act is governed by the law in effect on the date the report
was made or the suit was commenced, and the former law is continued
in effect for that purpose.
SECTION 16. This Act takes effect September 1, 2009.