85R13093 MCK-F
By: Burrows H.B. No. 3297
A BILL TO BE ENTITLED
AN ACT
relating to certain suits affecting the parent-child relationship.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 105.002, Family Code, is amended by
adding Subsection (d) to read as follows:
(d) In a suit affecting the parent-child relationship in
which the Department of Family and Protective Services seeks
termination of the parent-child relationship, the court may not
issue broad-form questions to the jury on the issue of whether to
terminate the parent-child relationship. The court shall instruct
the jury to find from the evidence whether the grounds for
termination of the parent-child relationship alleged in the
petition are true. If the petition alleges more than one ground for
termination, the jury shall indicate in the verdict which grounds
are sustained by the evidence and which are not sustained. To the
extent that this subsection conflicts with the Texas Rules of Civil
Procedure, this subsection controls. Notwithstanding Section
22.004, Government Code, the supreme court may not amend or adopt
rules in conflict with this subsection.
SECTION 2. Section 154.001, Family Code, is amended by
amending Subsection (b) and adding Subsection (b-1) to read as
follows:
(b) In a suit filed by the Department of Family and
Protective Services to be named managing conservator of a child,
the court may not order a parent of the child to make periodic
payments for the support of the child while the suit is pending,
except as provided by this section. [The court may order either or
both parents to make periodic payments for the support of a child in
a proceeding in which the Department of Protective and Regulatory
Services is named temporary managing conservator.]
(b-1) In a proceeding in which a court renders a final order
appointing the Department of Family and Protective [and Regulatory]
Services as [is named permanent] managing conservator of a child
whose parents' rights have not been terminated, the court shall
order each parent that is financially able to make periodic
payments for the support of the child.
SECTION 3. Section 161.001, Family Code, is amended by
adding Subsection (c) to read as follows:
(c) A court may not make a finding under Subsection (b) and
order termination of the parent-child relationship based solely on
evidence that the parent:
(1) homeschooled the child;
(2) declined immunization for the child for reasons of
conscience, including a religious belief;
(3) engaged in reasonable discipline of the child; or
(4) has been charged with a 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.
SECTION 4. Subchapter B, Chapter 161, Family Code, is
amended by adding Section 161.1011 to read as follows:
Sec. 161.1011. FILING REQUIREMENT FOR PETITION RELATING TO
MORE THAN ONE CHILD. (a) Before filing a petition for the
termination of the parent-child relationship relating to more than
one child, the Department of Family and Protective Services must
determine whether any court has continuing, exclusive jurisdiction
of a child named in the petition. If a court is determined to have
continuing, exclusive jurisdiction of a child named in the
petition, the department shall file the petition in that court.
(b) If more than one court has continuing, exclusive
jurisdiction of a child named in the petition, the department shall
file the petition in the court that has most recently exercised
continuing, exclusive jurisdiction of a child named in the
petition.
SECTION 5. Section 161.206, Family Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) In a suit filed by the Department of Family and
Protective Services seeking termination of the parent-child
relationship for both parents of the child, the court may order
termination of the parent-child relationship for both parents only
if the court finds by clear and convincing evidence grounds for the
termination of the parent-child relationship for each parent. An
order rendered under this subsection must state the grounds for
terminating the parent-child relationship for each parent.
SECTION 6. Subchapter B, Chapter 262, Family Code, is
amended by adding Section 262.116 to read as follows:
Sec. 262.116. LIMITS ON REMOVAL. (a) The Department of
Family and Protective Services may not take possession of a child
under this subchapter based solely on evidence that the parent:
(1) homeschooled the child;
(2) declined immunization for the child for reasons of
conscience, including a religious belief;
(3) engaged in reasonable discipline of the child; or
(4) has been charged with a 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.
(b) The department shall train child protective services
caseworkers regarding the prohibitions on removal provided under
Subsection (a).
(c) The executive commissioner of the Health and Human
Services Commission may adopt rules to implement this section.
SECTION 7. 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
produce in the mind of a reasonable person a firm belief or
conviction [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] and that continuation in the home would be
contrary to the child's welfare;
(2) there is no time, consistent with the physical
health or safety of the child, for a full adversary hearing under
Subchapter C; 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 the removal of the child.
SECTION 8. 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 the evidence is sufficient to produce in the
mind of a reasonable person a firm belief or conviction 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] and that continuation in the home would be
contrary to the child's welfare;
(2) there is no time, consistent with the physical
health or safety of the child and the nature of the emergency, for a
full adversary hearing under Subchapter C; 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 9. Section 262.104, Family Code, is amended to read
as follows:
Sec. 262.104. TAKING POSSESSION OF A CHILD IN EMERGENCY
WITHOUT A COURT ORDER. (a) If there is no time to obtain a
temporary order, temporary restraining order, or attachment under
Section 262.102(a) before taking possession of a child consistent
with the health and safety of that child, an authorized
representative of the Department of Family and Protective Services,
a law enforcement officer, or a juvenile probation officer may take
possession of a child without a court order under the following
conditions, only:
(1) on personal knowledge of facts that would produce
in the mind of a reasonable person a firm belief or conviction [lead
a person of ordinary prudence and caution to believe] that there is
an immediate danger to the physical health or safety of the child;
(2) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would produce in the mind of a reasonable person a firm
belief or conviction [lead a person of ordinary prudence and
caution to believe] that there is an immediate danger to the
physical health or safety of the child;
(3) on personal knowledge of facts that would produce
in the mind of a reasonable person a firm belief or conviction [lead
a person of ordinary prudence and caution to believe] that the child
has been the victim of sexual abuse or of trafficking under Section
20A.02 or 20A.03, Penal Code;
(4) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would produce in the mind of a reasonable person a firm
belief or conviction [lead a person of ordinary prudence and
caution to believe] that the child has been the victim of sexual
abuse or of trafficking under Section 20A.02 or 20A.03, Penal Code;
or
(5) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would produce in the mind of a reasonable person a firm
belief or conviction [lead a person of ordinary prudence and
caution to believe] that 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.
(b) An authorized representative of the Department of
Family and Protective Services, a law enforcement officer, or a
juvenile probation officer may take possession of a child under
Subsection (a) on personal knowledge or information furnished by
another, that has been corroborated by personal knowledge, that
would produce in the mind of a reasonable person a firm belief or
conviction [lead a person of ordinary prudence and caution to
believe] that the parent or person who has possession of the child
has permitted the child to remain on premises used for the
manufacture of methamphetamine.
SECTION 10. 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 determines
based on clear and convincing evidence [is satisfied] that:
(1) 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 the evidence shows that 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;
(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 11. Section 262.113, Family Code, is amended to
read as follows:
Sec. 262.113. FILING SUIT WITHOUT TAKING POSSESSION OF
CHILD. An original suit filed by a governmental entity that
requests to take possession of a child after notice and a hearing
must be supported by an affidavit sworn to by a person with personal
knowledge and stating facts sufficient to produce in the mind of a
reasonable person a firm belief or conviction [satisfy a person of
ordinary prudence and caution] that:
(1) the child has been a victim of neglect or abuse;
(2) reasonable efforts have been made to prevent or
eliminate the need to remove the child from the child's home; and
(3) [(2)] allowing the child to remain in the home
would be contrary to the child's welfare.
SECTION 12. Section 262.201, Family Code, is amended by
adding Subsection (a-5) and amending Subsections (b) and (c) to
read as follows:
(a-5) If a parent who is not indigent appears in opposition
to the suit, the court may, for good cause shown, postpone the full
adversary hearing for not more than seven days from the date of the
parent's appearance to allow the parent to hire an attorney or to
provide the parent's attorney time to respond to the petition and
prepare for the hearing. A postponement under this subsection is
subject to the limits and requirements prescribed by Subsection
(a-3).
(b) 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 unless the court finds sufficient
evidence to produce in the mind of a reasonable person a firm belief
or conviction [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.
(c) If the court finds sufficient evidence to produce in the
mind of a reasonable person a firm belief or conviction [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. 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. 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.
SECTION 13. Section 262.205(b), Family Code, is amended to
read as follows:
(b) After the 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
produce in the mind of a reasonable person a firm belief or
conviction [satisfy a person of ordinary prudence and caution]
that:
(1) reasonable efforts have been made to prevent or
eliminate the need to remove the child from the child's home; and
(2) allowing the child to remain in the home would be
contrary to the child's welfare.
SECTION 14. Subchapter C, Chapter 262, Family Code, is
amended by adding Section 262.206 to read as follows:
Sec. 262.206. EX PARTE HEARINGS PROHIBITED. Unless
otherwise authorized by law, a hearing held by a court in a suit
under this chapter may not be ex parte.
SECTION 15. Section 263.401, Family Code, is amended to
read as follows:
Sec. 263.401. DISMISSAL AFTER ONE YEAR; NEW TRIALS;
EXTENSION. (a) Unless the court has commenced the trial on the
merits or granted an extension under Subsection (b) or (b-1), on the
first Monday after the first anniversary of the date the court
rendered a temporary order appointing the department as temporary
managing conservator, the court's jurisdiction over [court shall
dismiss] the suit affecting the parent-child relationship filed by
the department that requests termination of the parent-child
relationship or requests that the department be named conservator
of the child is terminated and the suit is automatically dismissed
without a court order.
(b) Unless the court has commenced the trial on the merits,
the court may not retain the suit on the court's docket after the
time described by Subsection (a) unless the court finds that
extraordinary circumstances necessitate the child remaining in the
temporary managing conservatorship of the department and that
continuing the appointment of the department as temporary managing
conservator is in the best interest of the child. If the court
makes those findings, the court may retain the suit on the court's
docket for a period not to exceed 180 days after the time described
by Subsection (a). If the court retains the suit on the court's
docket, the court shall render an order in which the court:
(1) schedules the new date on which the suit will be
automatically dismissed if the trial on the merits has not
commenced, which date must be not later than the 180th day after the
time described by Subsection (a);
(2) makes further temporary orders for the safety and
welfare of the child as necessary to avoid further delay in
resolving the suit; and
(3) sets the trial on the merits on a date not later
than the date specified under Subdivision (1).
(b-1) If, after commencement of the initial trial on the
merits within the time required by Subsection (a) or (b), the court
grants a motion for a new trial or mistrial, or the case is remanded
to the court by an appellate court following an appeal of the
court's final order, the court shall retain the suit on the court's
docket and render an order in which the court:
(1) schedules a new date on which the suit will be
automatically dismissed if the new trial has not commenced, which
must be a date not later than the 180th day after the date on which:
(A) the motion for a new trial or mistrial is
granted; or
(B) the appellate court remanded the case;
(2) makes further temporary orders for the safety and
welfare of the child as necessary to avoid further delay in
resolving the suit; and
(3) sets the new trial on the merits for a date not
later than the date specified under Subdivision (1).
(c) If the court grants an extension under Subsection (b) or
(b-1) but does not commence the trial on the merits before the
dismissal date, the court's jurisdiction over [court shall dismiss]
the suit is terminated and the suit is automatically dismissed
without a court order. The court may not grant an additional
extension that extends the suit beyond the required date for
dismissal under Subsection (b) or (b-1), as applicable.
SECTION 16. Section 264.009(a), Family Code, is amended to
read as follows:
(a) Except as provided by Subsection (b)[, (c),] or (f), in
any action under this code, the department shall be represented in
court by the county attorney of the county where the action is
brought, unless the district attorney or criminal district attorney
of the county elects to provide representation.
SECTION 17. The following provisions are repealed:
(1) Article 56.54(j), Code of Criminal Procedure;
(2) Section 201.014(b), Family Code;
(3) Subchapter C, Chapter 201, Family Code; and
(4) Sections 264.009(c), (d), and (e), Family Code.
SECTION 18. (a) Except as provided by Subsection (b) of
this section, 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.
(b) The changes made by this Act to Section 263.401, Family
Code, apply only to a suit affecting the parent-child relationship
pending in a trial court on the effective date of this Act or filed
on or after the effective date of this Act. A suit affecting the
parent-child relationship in which a final order is rendered before
the effective date of this Act is governed by the law in effect on
the date the order was rendered, and the former law is continued in
effect for that purpose.
SECTION 19. This Act takes effect September 1, 2017.