Texas 2017 - 85th Regular

Texas House Bill HB3108 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	85R22994 MM-F
2	2	By: Giddings H.B. No. 3108
3	3	Substitute the following for H.B. No. 3108:
4	4	By: Frank C.S.H.B. No. 3108
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to procedures for taking possession of a child and for
10	10	certain hearings in a suit affecting the parent-child relationship
11	11	involving the Department of Family and Protective Services.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 262.101, Family Code, is amended to read
14	14	as follows:
15	15	Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
16	16	CHILD. An original suit filed by a governmental entity that
17	17	requests permission to take possession of a child without prior
18	18	notice and a hearing must be supported by an affidavit sworn to by a
19	19	person with personal knowledge and stating facts sufficient to
20	20	satisfy a person of ordinary prudence and caution that:
21	21	(1) there is an immediate danger to the physical
22	22	health or safety of the child or the child has been a victim of
23	23	neglect or sexual abuse;
24	24	(2) [and that] continuation in the home would be
25	25	contrary to the child's welfare;
26	26	(3) [(2)] there is no time, consistent with the
27	27	physical health or safety of the child, for a full adversary hearing
28	28	under Subchapter C; and
29	29	(4) [(3)] reasonable efforts, consistent with the
30	30	circumstances and providing for the safety of the child, were made
31	31	to prevent or eliminate the need for the removal of the child.
32	32	SECTION 2. Section 262.1015(d), Family Code, is amended to
33	33	read as follows:
34	34	(d) A temporary restraining order under this section
35	35	expires not later than the 14th day after the date the order was
36	36	rendered, unless the court grants an extension under Section
37	37	262.201(e) [262.201(a-3)].
38	38	SECTION 3. Section 262.102(a), Family Code, is amended to
39	39	read as follows:
40	40	(a) Before a court may, without prior notice and a hearing,
41	41	issue a temporary order for the conservatorship of a child under
42	42	Section 105.001(a)(1) or a temporary restraining order or
43	43	attachment of a child authorizing a governmental entity to take
44	44	possession of a child in a suit brought by a governmental entity,
45	45	the court must find that:
46	46	(1) there is an immediate danger to the physical
47	47	health or safety of the child or the child has been a victim of
48	48	neglect or sexual abuse;
49	49	(2) [and that] continuation in the home would be
50	50	contrary to the child's welfare;
51	51	(3) [(2)] there is no time, consistent with the
52	52	physical health or safety of the child and the nature of the
53	53	emergency, for a full adversary hearing under Subchapter C; and
54	54	(4) [(3)] reasonable efforts, consistent with the
55	55	circumstances and providing for the safety of the child, were made
56	56	to prevent or eliminate the need for removal of the child.
57	57	SECTION 4. Section 262.103, Family Code, is amended to read
58	58	as follows:
59	59	Sec. 262.103. DURATION OF TEMPORARY ORDER, TEMPORARY
60	60	RESTRAINING ORDER, AND ATTACHMENT. A temporary order, temporary
61	61	restraining order, or attachment of the child issued under Section
62	62	262.102(a) expires not later than 14 days after the date it is
63	63	issued unless it is extended as provided by the Texas Rules of Civil
64	64	Procedure or Section 262.201(e) [262.201(a-3)].
65	65	SECTION 5. Section 262.105, Family Code, is amended to read
66	66	as follows:
67	67	Sec. 262.105. FILING PETITION AFTER TAKING POSSESSION OF
68	68	CHILD IN EMERGENCY. (a) When a child is taken into possession
69	69	without a court order, the person taking the child into possession,
70	70	without unnecessary delay, shall:
71	71	(1) file a suit affecting the parent-child
72	72	relationship; and
73	73	(2) [request the court to appoint an attorney ad litem
74	74	for the child; and
75	75	[(3)] request an initial hearing to be held by no later
76	76	than the first business [working] day after the date the child is
77	77	taken into possession.
78	78	(b) An original suit filed by a governmental entity after
79	79	taking possession of a child under Section 262.104 must be
80	80	supported by an affidavit stating facts sufficient to satisfy a
81	81	person of ordinary prudence and caution that:
82	82	(1) based on the affiant's personal knowledge or on
83	83	information furnished by another person corroborated by the
84	84	affiant's personal knowledge, one of the following circumstances
85	85	existed at the time the child was taken into possession:
86	86	(A) there was an immediate danger to the physical
87	87	health or safety of the child;
88	88	(B) the child was the victim of sexual abuse or of
89	89	trafficking under Section 20A.02 or 20A.03, Penal Code;
90	90	(C) the parent or person who had possession of
91	91	the child was using a controlled substance as defined by Chapter
92	92	481, Health and Safety Code, and the use constituted an immediate
93	93	danger to the physical health or safety of the child; or
94	94	(D) the parent or person who had possession of
95	95	the child permitted the child to remain on premises used for the
96	96	manufacture of methamphetamine; and
97	97	(2) based on the affiant's personal knowledge:
98	98	(A) continuation of the child in the home would
99	99	have been contrary to the child's welfare;
100	100	(B) there was no time, consistent with the
101	101	physical health or safety of the child, for a full adversary hearing
102	102	under Subchapter C; and
103	103	(C) reasonable efforts, consistent with the
104	104	circumstances and providing for the safety of the child, were made
105	105	to prevent or eliminate the need for the removal of the child.
106	106	SECTION 6. Sections 262.106(a) and (d), Family Code, are
107	107	amended to read as follows:
108	108	(a) The court in which a suit has been filed after a child
109	109	has been taken into possession without a court order by a
110	110	governmental entity shall hold an initial hearing on or before the
111	111	first business [working] day after the date the child is taken into
112	112	possession. The court shall render orders that are necessary to
113	113	protect the physical health and safety of the child. If the court
114	114	is unavailable for a hearing on the first business [working] day,
115	115	then, and only in that event, the hearing shall be held no later
116	116	than the first business [working] day after the court becomes
117	117	available, provided that the hearing is held no later than the third
118	118	business [working] day after the child is taken into possession.
119	119	(d) For the purpose of determining under Subsection (a) the
120	120	first business [working] day after the date the child is taken into
121	121	possession, the child is considered to have been taken into
122	122	possession by the Department of Family and Protective Services on
123	123	the expiration of the five-day period permitted under Section
124	124	262.007(c) or 262.110(b), as appropriate.
125	125	SECTION 7. Section 262.107(a), Family Code, is amended to
126	126	read as follows:
127	127	(a) The court shall order the return of the child at the
128	128	initial hearing regarding a child taken in possession without a
129	129	court order by a governmental entity unless the court is satisfied
130	130	that:
131	131	(1) the evidence shows that one of the following
132	132	circumstances exists:
133	133	(A) there is a continuing danger to the physical
134	134	health or safety of the child if the child is returned to the
135	135	parent, managing conservator, possessory conservator, guardian,
136	136	caretaker, or custodian who is presently entitled to possession of
137	137	the child;
138	138	(B) [or the evidence shows that] the child has
139	139	been the victim of sexual abuse or of trafficking under Section
140	140	20A.02 or 20A.03, Penal Code, on one or more occasions and that
141	141	there is a substantial risk that the child will be the victim of
142	142	sexual abuse or of trafficking in the future;
143	143	(C) the parent or person who has possession of
144	144	the child is currently using a controlled substance as defined by
145	145	Chapter 481, Health and Safety Code, and the use constitutes an
146	146	immediate danger to the physical health or safety of the child; or
147	147	(D) the parent or person who has possession of
148	148	the child has permitted the child to remain on premises used for the
149	149	manufacture of methamphetamine;
150	150	(2) continuation of the child in the home would be
151	151	contrary to the child's welfare; and
152	152	(3) reasonable efforts, consistent with the
153	153	circumstances and providing for the safety of the child, were made
154	154	to prevent or eliminate the need for removal of the child.
155	155	SECTION 8. Section 262.109(b), Family Code, is amended to
156	156	read as follows:
157	157	(b) The written notice must be given as soon as practicable,
158	158	but in any event not later than the first business [working] day
159	159	after the date the child is taken into possession.
160	160	SECTION 9. Subchapter B, Chapter 262, Family Code, is
161	161	amended by adding Section 262.1131 to read as follows:
162	162	Sec. 262.1131. TEMPORARY RESTRAINING ORDER BEFORE FULL
163	163	ADVERSARY HEARING. In a suit filed under Section 262.113, the court
164	164	may render a temporary restraining order as provided by Section
165	165	105.001.
166	166	SECTION 10. Section 262.201, Family Code, is amended to
167	167	read as follows:
168	168	Sec. 262.201. FULL ADVERSARY HEARING; FINDINGS OF THE
169	169	COURT. (a) In a suit filed under Section 262.101 or 262.105,
170	170	unless [Unless] the child has already been returned to the parent,
171	171	managing conservator, possessory conservator, guardian, caretaker,
172	172	or custodian entitled to possession and the temporary order, if
173	173	any, has been dissolved, a full adversary hearing shall be held not
174	174	later than the 14th day after the date the child was taken into
175	175	possession by the governmental entity, unless the court grants an
176	176	extension under Subsection (e) [(a-3)].
177	177	(b) A full adversary hearing in a suit filed under Section
178	178	262.113 requesting possession of a child shall be held not later
179	179	than the 30th day after the date the suit is filed.
180	180	(c) [(a-1)] Before commencement of the full adversary
181	181	hearing, the court must inform each parent not represented by an
182	182	attorney of:
183	183	(1) the right to be represented by an attorney; and
184	184	(2) if a parent is indigent and appears in opposition
185	185	to the suit, the right to a court-appointed attorney.
186	186	(d) [(a-2)] If a parent claims indigence and requests the
187	187	appointment of an attorney before the full adversary hearing, the
188	188	court shall require the parent to complete and file with the court
189	189	an affidavit of indigence. The court may consider additional
190	190	evidence to determine whether the parent is indigent, including
191	191	evidence relating to the parent's income, source of income, assets,
192	192	property ownership, benefits paid in accordance with a federal,
193	193	state, or local public assistance program, outstanding
194	194	obligations, and necessary expenses and the number and ages of the
195	195	parent's dependents. If the appointment of an attorney for the
196	196	parent is requested, the court shall make a determination of
197	197	indigence before commencement of the full adversary hearing. If
198	198	the court determines the parent is indigent, the court shall
199	199	appoint an attorney to represent the parent.
200	200	(e) [(a-3)] The court may, for good cause shown, postpone
201	201	the full adversary hearing for not more than seven days from the
202	202	date of the attorney's appointment to provide the attorney time to
203	203	respond to the petition and prepare for the hearing. The court may
204	204	shorten or lengthen the extension granted under this subsection if
205	205	the parent and the appointed attorney agree in writing. If the
206	206	court postpones the full adversary hearing, the court shall extend
207	207	a temporary order, temporary restraining order, or attachment
208	208	issued by the court under Section 262.102(a) or Section 262.1131
209	209	for the protection of the child until the date of the rescheduled
210	210	full adversary hearing.
211	211	(f) [(a-4)] The court shall ask all parties present at the
212	212	full adversary hearing whether the child or the child's family has a
213	213	Native American heritage and identify any Native American tribe
214	214	with which the child may be associated.
215	215	(g) In a suit filed under Section 262.101 or 262.105, at
216	216	[(b) At] the conclusion of the full adversary hearing, the court
217	217	shall order the return of the child to the parent, managing
218	218	conservator, possessory conservator, guardian, caretaker, or
219	219	custodian entitled to possession unless the court finds sufficient
220	220	evidence to satisfy a person of ordinary prudence and caution that:
221	221	(1) there was a danger to the physical health or safety
222	222	of the child, including a danger that the child would be a victim of
223	223	trafficking under Section 20A.02 or 20A.03, Penal Code, which was
224	224	caused by an act or failure to act of the person entitled to
225	225	possession and for the child to remain in the home is contrary to
226	226	the welfare of the child;
227	227	(2) the urgent need for protection required the
228	228	immediate removal of the child and reasonable efforts, consistent
229	229	with the circumstances and providing for the safety of the child,
230	230	were made to eliminate or prevent the child's removal; and
231	231	(3) reasonable efforts have been made to enable the
232	232	child to return home, but there is a substantial risk of a
233	233	continuing danger if the child is returned home.
234	234	(h) In a suit filed under Section 262.101 or 262.105, if
235	235	[(c) If] the court finds sufficient evidence to satisfy a person
236	236	of ordinary prudence and caution that there is a continuing danger
237	237	to the physical health or safety of the child and for the child to
238	238	remain in the home is contrary to the welfare of the child, the
239	239	court shall issue an appropriate temporary order under Chapter 105.
240	240	(i) In determining whether there is a continuing danger to
241	241	the physical health or safety of the child under Subsection (g), the
242	242	court may consider whether the household to which the child would be
243	243	returned includes a person who:
244	244	(1) has abused or neglected another child in a manner
245	245	that caused serious injury to or the death of the other child; or
246	246	(2) has sexually abused another child.
247	247	(j) In a suit filed under Section 262.113, at the conclusion
248	248	of the full adversary hearing, the court shall issue an appropriate
249	249	temporary order under Chapter 105 if the court finds sufficient
250	250	evidence to satisfy a person of ordinary prudence and caution that:
251	251	(1) there is a continuing danger to the physical
252	252	health or safety of the child caused by an act or failure to act of
253	253	the person entitled to possession of the child and continuation of
254	254	the child in the home would be contrary to the child's welfare; and
255	255	(2) reasonable efforts, consistent with the
256	256	circumstances and providing for the safety of the child, were made
257	257	to prevent or eliminate the need for the removal of the child.
258	258	(k) If the court finds that the child requires protection
259	259	from family violence, as that term is defined by Section 71.004, by
260	260	a member of the child's family or household, the court shall render
261	261	a protective order for the child under Title 4.
262	262	(l) The court shall require each parent, alleged father, or
263	263	relative of the child before the court to complete the proposed
264	264	child placement resources form provided under Section 261.307 and
265	265	file the form with the court, if the form has not been previously
266	266	filed with the court, and provide the Department of Family and
267	267	Protective Services with information necessary to locate any other
268	268	absent parent, alleged father, or relative of the child. The court
269	269	shall inform each parent, alleged father, or relative of the child
270	270	before the court that the person's failure to submit the proposed
271	271	child placement resources form will not delay any court proceedings
272	272	relating to the child.
273	273	(m) The court shall inform each parent in open court that
274	274	parental and custodial rights and duties may be subject to
275	275	restriction or to termination unless the parent or parents are
276	276	willing and able to provide the child with a safe environment. [If
277	277	the court finds that the child requires protection from family
278	278	violence by a member of the child's family or household, the court
279	279	shall render a protective order under Title 4 for the child. In
280	280	this subsection, "family violence" has the meaning assigned by
281	281	Section 71.004.
282	282	[(d) In determining whether there is a continuing danger to
283	283	the physical health or safety of the child, the court may consider
284	284	whether the household to which the child would be returned includes
285	285	a person who:
286	286	[(1) has abused or neglected another child in a manner
287	287	that caused serious injury to or the death of the other child; or
288	288	[(2) has sexually abused another child.]
289	289	(n) [(e)] The court shall place a child removed from the
290	290	child's custodial parent with the child's noncustodial parent
291	291	unless the court finds that:
292	292	(1) there is a danger to the physical health or safety
293	293	of the child caused by an act or failure to act of the child's
294	294	noncustodial parent and placement of the child with the child's
295	295	noncustodial parent would be contrary to the child's welfare;
296	296	(2) reasonable efforts, consistent with the
297	297	circumstances and providing for the safety of the child, were made
298	298	to place the child with the child's noncustodial parent; and
299	299	(3) it is not in the best interest of the child to be
300	300	placed with the child's noncustodial parent.
301	301	(o) If [or with a relative of the child if] placement with
302	302	the noncustodial parent is inappropriate, the court shall place a
303	303	child removed from the child's custodial parent with a relative of
304	304	the child unless placement with [the noncustodial parent or] a
305	305	relative is not in the best interest of the child.
306	306	(p) [(f)] When citation by publication is needed for a
307	307	parent or alleged or probable father in an action brought under this
308	308	chapter because the location of the parent, alleged father, or
309	309	probable father is unknown, the court may render a temporary order
310	310	without delay at any time after the filing of the action without
311	311	regard to whether notice of the citation by publication has been
312	312	published.
313	313	(q) [(g)] For the purpose of determining under Subsection
314	314	(a) the 14th day after the date the child is taken into possession,
315	315	a child is considered to have been taken into possession by the
316	316	Department of Family and Protective Services on the expiration of
317	317	the five-day period permitted under Section 262.007(c) or
318	318	262.110(b), as appropriate.
319	319	SECTION 11. Section 262.205, Family Code, is repealed.
320	320	SECTION 12. The changes in law made by this Act apply only
321	321	to a suit affecting the parent-child relationship that is filed on
322	322	or after the effective date of this Act. A suit filed before the
323	323	effective date of this Act is governed by the law in effect on the
324	324	date the suit is filed, and the former law is continued in effect
325	325	for that purpose.
326	326	SECTION 13. This Act takes effect September 1, 2017.