85R7332 MM-F
By: Giddings H.B. No. 3108
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.