Texas 2017 - 85th Regular

Texas House Bill HB3297 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R13093 MCK-F
2	2	By: Burrows H.B. No. 3297
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certain suits affecting the parent-child relationship.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 105.002, Family Code, is amended by
10	10	adding Subsection (d) to read as follows:
11	11	(d) In a suit affecting the parent-child relationship in
12	12	which the Department of Family and Protective Services seeks
13	13	termination of the parent-child relationship, the court may not
14	14	issue broad-form questions to the jury on the issue of whether to
15	15	terminate the parent-child relationship. The court shall instruct
16	16	the jury to find from the evidence whether the grounds for
17	17	termination of the parent-child relationship alleged in the
18	18	petition are true. If the petition alleges more than one ground for
19	19	termination, the jury shall indicate in the verdict which grounds
20	20	are sustained by the evidence and which are not sustained. To the
21	21	extent that this subsection conflicts with the Texas Rules of Civil
22	22	Procedure, this subsection controls. Notwithstanding Section
23	23	22.004, Government Code, the supreme court may not amend or adopt
24	24	rules in conflict with this subsection.
25	25	SECTION 2. Section 154.001, Family Code, is amended by
26	26	amending Subsection (b) and adding Subsection (b-1) to read as
27	27	follows:
28	28	(b) In a suit filed by the Department of Family and
29	29	Protective Services to be named managing conservator of a child,
30	30	the court may not order a parent of the child to make periodic
31	31	payments for the support of the child while the suit is pending,
32	32	except as provided by this section. [The court may order either or
33	33	both parents to make periodic payments for the support of a child in
34	34	a proceeding in which the Department of Protective and Regulatory
35	35	Services is named temporary managing conservator.]
36	36	(b-1) In a proceeding in which a court renders a final order
37	37	appointing the Department of Family and Protective [and Regulatory]
38	38	Services as [is named permanent] managing conservator of a child
39	39	whose parents' rights have not been terminated, the court shall
40	40	order each parent that is financially able to make periodic
41	41	payments for the support of the child.
42	42	SECTION 3. Section 161.001, Family Code, is amended by
43	43	adding Subsection (c) to read as follows:
44	44	(c) A court may not make a finding under Subsection (b) and
45	45	order termination of the parent-child relationship based solely on
46	46	evidence that the parent:
47	47	(1) homeschooled the child;
48	48	(2) declined immunization for the child for reasons of
49	49	conscience, including a religious belief;
50	50	(3) engaged in reasonable discipline of the child; or
51	51	(4) has been charged with a misdemeanor offense other
52	52	than:
53	53	(A) an offense under Title 5, Penal Code;
54	54	(B) an offense under Title 6, Penal Code; or
55	55	(C) an offense that involves family violence, as
56	56	defined by Section 71.004 of this code.
57	57	SECTION 4. Subchapter B, Chapter 161, Family Code, is
58	58	amended by adding Section 161.1011 to read as follows:
59	59	Sec. 161.1011. FILING REQUIREMENT FOR PETITION RELATING TO
60	60	MORE THAN ONE CHILD. (a) Before filing a petition for the
61	61	termination of the parent-child relationship relating to more than
62	62	one child, the Department of Family and Protective Services must
63	63	determine whether any court has continuing, exclusive jurisdiction
64	64	of a child named in the petition. If a court is determined to have
65	65	continuing, exclusive jurisdiction of a child named in the
66	66	petition, the department shall file the petition in that court.
67	67	(b) If more than one court has continuing, exclusive
68	68	jurisdiction of a child named in the petition, the department shall
69	69	file the petition in the court that has most recently exercised
70	70	continuing, exclusive jurisdiction of a child named in the
71	71	petition.
72	72	SECTION 5. Section 161.206, Family Code, is amended by
73	73	adding Subsection (a-1) to read as follows:
74	74	(a-1) In a suit filed by the Department of Family and
75	75	Protective Services seeking termination of the parent-child
76	76	relationship for both parents of the child, the court may order
77	77	termination of the parent-child relationship for both parents only
78	78	if the court finds by clear and convincing evidence grounds for the
79	79	termination of the parent-child relationship for each parent. An
80	80	order rendered under this subsection must state the grounds for
81	81	terminating the parent-child relationship for each parent.
82	82	SECTION 6. Subchapter B, Chapter 262, Family Code, is
83	83	amended by adding Section 262.116 to read as follows:
84	84	Sec. 262.116. LIMITS ON REMOVAL. (a) The Department of
85	85	Family and Protective Services may not take possession of a child
86	86	under this subchapter based solely on evidence that the parent:
87	87	(1) homeschooled the child;
88	88	(2) declined immunization for the child for reasons of
89	89	conscience, including a religious belief;
90	90	(3) engaged in reasonable discipline of the child; or
91	91	(4) has been charged with a misdemeanor offense other
92	92	than:
93	93	(A) an offense under Title 5, Penal Code;
94	94	(B) an offense under Title 6, Penal Code; or
95	95	(C) an offense that involves family violence, as
96	96	defined by Section 71.004 of this code.
97	97	(b) The department shall train child protective services
98	98	caseworkers regarding the prohibitions on removal provided under
99	99	Subsection (a).
100	100	(c) The executive commissioner of the Health and Human
101	101	Services Commission may adopt rules to implement this section.
102	102	SECTION 7. Section 262.101, Family Code, is amended to read
103	103	as follows:
104	104	Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
105	105	CHILD. An original suit filed by a governmental entity that
106	106	requests permission to take possession of a child without prior
107	107	notice and a hearing must be supported by an affidavit sworn to by a
108	108	person with personal knowledge and stating facts sufficient to
109	109	produce in the mind of a reasonable person a firm belief or
110	110	conviction [satisfy a person of ordinary prudence and caution]
111	111	that:
112	112	(1) there is an immediate danger to the physical
113	113	health or safety of the child [or the child has been a victim of
114	114	neglect or sexual abuse] and that continuation in the home would be
115	115	contrary to the child's welfare;
116	116	(2) there is no time, consistent with the physical
117	117	health or safety of the child, for a full adversary hearing under
118	118	Subchapter C; and
119	119	(3) reasonable efforts, consistent with the
120	120	circumstances and providing for the safety of the child, were made
121	121	to prevent or eliminate the need for the removal of the child.
122	122	SECTION 8. Section 262.102(a), Family Code, is amended to
123	123	read as follows:
124	124	(a) Before a court may, without prior notice and a hearing,
125	125	issue a temporary order for the conservatorship of a child under
126	126	Section 105.001(a)(1) or a temporary restraining order or
127	127	attachment of a child authorizing a governmental entity to take
128	128	possession of a child in a suit brought by a governmental entity,
129	129	the court must find the evidence is sufficient to produce in the
130	130	mind of a reasonable person a firm belief or conviction that:
131	131	(1) there is an immediate danger to the physical
132	132	health or safety of the child [or the child has been a victim of
133	133	neglect or sexual abuse] and that continuation in the home would be
134	134	contrary to the child's welfare;
135	135	(2) there is no time, consistent with the physical
136	136	health or safety of the child and the nature of the emergency, for a
137	137	full adversary hearing under Subchapter C; and
138	138	(3) reasonable efforts, consistent with the
139	139	circumstances and providing for the safety of the child, were made
140	140	to prevent or eliminate the need for removal of the child.
141	141	SECTION 9. Section 262.104, Family Code, is amended to read
142	142	as follows:
143	143	Sec. 262.104. TAKING POSSESSION OF A CHILD IN EMERGENCY
144	144	WITHOUT A COURT ORDER. (a) If there is no time to obtain a
145	145	temporary order, temporary restraining order, or attachment under
146	146	Section 262.102(a) before taking possession of a child consistent
147	147	with the health and safety of that child, an authorized
148	148	representative of the Department of Family and Protective Services,
149	149	a law enforcement officer, or a juvenile probation officer may take
150	150	possession of a child without a court order under the following
151	151	conditions, only:
152	152	(1) on personal knowledge of facts that would produce
153	153	in the mind of a reasonable person a firm belief or conviction [lead
154	154	a person of ordinary prudence and caution to believe] that there is
155	155	an immediate danger to the physical health or safety of the child;
156	156	(2) on information furnished by another that has been
157	157	corroborated by personal knowledge of facts and all of which taken
158	158	together would produce in the mind of a reasonable person a firm
159	159	belief or conviction [lead a person of ordinary prudence and
160	160	caution to believe] that there is an immediate danger to the
161	161	physical health or safety of the child;
162	162	(3) on personal knowledge of facts that would produce
163	163	in the mind of a reasonable person a firm belief or conviction [lead
164	164	a person of ordinary prudence and caution to believe] that the child
165	165	has been the victim of sexual abuse or of trafficking under Section
166	166	20A.02 or 20A.03, Penal Code;
167	167	(4) on information furnished by another that has been
168	168	corroborated by personal knowledge of facts and all of which taken
169	169	together would produce in the mind of a reasonable person a firm
170	170	belief or conviction [lead a person of ordinary prudence and
171	171	caution to believe] that the child has been the victim of sexual
172	172	abuse or of trafficking under Section 20A.02 or 20A.03, Penal Code;
173	173	or
174	174	(5) on information furnished by another that has been
175	175	corroborated by personal knowledge of facts and all of which taken
176	176	together would produce in the mind of a reasonable person a firm
177	177	belief or conviction [lead a person of ordinary prudence and
178	178	caution to believe] that the parent or person who has possession of
179	179	the child is currently using a controlled substance as defined by
180	180	Chapter 481, Health and Safety Code, and the use constitutes an
181	181	immediate danger to the physical health or safety of the child.
182	182	(b) An authorized representative of the Department of
183	183	Family and Protective Services, a law enforcement officer, or a
184	184	juvenile probation officer may take possession of a child under
185	185	Subsection (a) on personal knowledge or information furnished by
186	186	another, that has been corroborated by personal knowledge, that
187	187	would produce in the mind of a reasonable person a firm belief or
188	188	conviction [lead a person of ordinary prudence and caution to
189	189	believe] that the parent or person who has possession of the child
190	190	has permitted the child to remain on premises used for the
191	191	manufacture of methamphetamine.
192	192	SECTION 10. Section 262.107(a), Family Code, is amended to
193	193	read as follows:
194	194	(a) The court shall order the return of the child at the
195	195	initial hearing regarding a child taken in possession without a
196	196	court order by a governmental entity unless the court determines
197	197	based on clear and convincing evidence [is satisfied] that:
198	198	(1) there is a continuing danger to the physical
199	199	health or safety of the child if the child is returned to the
200	200	parent, managing conservator, possessory conservator, guardian,
201	201	caretaker, or custodian who is presently entitled to possession of
202	202	the child or the evidence shows that the child has been the victim
203	203	of sexual abuse or of trafficking under Section 20A.02 or 20A.03,
204	204	Penal Code, on one or more occasions and that there is a substantial
205	205	risk that the child will be the victim of sexual abuse or of
206	206	trafficking in the future;
207	207	(2) continuation of the child in the home would be
208	208	contrary to the child's welfare; and
209	209	(3) reasonable efforts, consistent with the
210	210	circumstances and providing for the safety of the child, were made
211	211	to prevent or eliminate the need for removal of the child.
212	212	SECTION 11. Section 262.113, Family Code, is amended to
213	213	read as follows:
214	214	Sec. 262.113. FILING SUIT WITHOUT TAKING POSSESSION OF
215	215	CHILD. An original suit filed by a governmental entity that
216	216	requests to take possession of a child after notice and a hearing
217	217	must be supported by an affidavit sworn to by a person with personal
218	218	knowledge and stating facts sufficient to produce in the mind of a
219	219	reasonable person a firm belief or conviction [satisfy a person of
220	220	ordinary prudence and caution] that:
221	221	(1) the child has been a victim of neglect or abuse;
222	222	(2) reasonable efforts have been made to prevent or
223	223	eliminate the need to remove the child from the child's home; and
224	224	(3) [(2)] allowing the child to remain in the home
225	225	would be contrary to the child's welfare.
226	226	SECTION 12. Section 262.201, Family Code, is amended by
227	227	adding Subsection (a-5) and amending Subsections (b) and (c) to
228	228	read as follows:
229	229	(a-5) If a parent who is not indigent appears in opposition
230	230	to the suit, the court may, for good cause shown, postpone the full
231	231	adversary hearing for not more than seven days from the date of the
232	232	parent's appearance to allow the parent to hire an attorney or to
233	233	provide the parent's attorney time to respond to the petition and
234	234	prepare for the hearing. A postponement under this subsection is
235	235	subject to the limits and requirements prescribed by Subsection
236	236	(a-3).
237	237	(b) At the conclusion of the full adversary hearing, the
238	238	court shall order the return of the child to the parent, managing
239	239	conservator, possessory conservator, guardian, caretaker, or
240	240	custodian entitled to possession unless the court finds sufficient
241	241	evidence to produce in the mind of a reasonable person a firm belief
242	242	or conviction [satisfy a person of ordinary prudence and caution]
243	243	that:
244	244	(1) there was a danger to the physical health or safety
245	245	of the child, including a danger that the child would be a victim of
246	246	trafficking under Section 20A.02 or 20A.03, Penal Code, which was
247	247	caused by an act or failure to act of the person entitled to
248	248	possession and for the child to remain in the home is contrary to
249	249	the welfare of the child;
250	250	(2) the urgent need for protection required the
251	251	immediate removal of the child and reasonable efforts, consistent
252	252	with the circumstances and providing for the safety of the child,
253	253	were made to eliminate or prevent the child's removal; and
254	254	(3) reasonable efforts have been made to enable the
255	255	child to return home, but there is a substantial risk of a
256	256	continuing danger if the child is returned home.
257	257	(c) If the court finds sufficient evidence to produce in the
258	258	mind of a reasonable person a firm belief or conviction [satisfy a
259	259	person of ordinary prudence and caution] that there is a continuing
260	260	danger to the physical health or safety of the child and for the
261	261	child to remain in the home is contrary to the welfare of the child,
262	262	the court shall issue an appropriate temporary order under Chapter
263	263	105. The court shall require each parent, alleged father, or
264	264	relative of the child before the court to complete the proposed
265	265	child placement resources form provided under Section 261.307 and
266	266	file the form with the court, if the form has not been previously
267	267	filed with the court, and provide the Department of Family and
268	268	Protective Services with information necessary to locate any other
269	269	absent parent, alleged father, or relative of the child. The court
270	270	shall inform each parent, alleged father, or relative of the child
271	271	before the court that the person's failure to submit the proposed
272	272	child placement resources form will not delay any court proceedings
273	273	relating to the child. The court shall inform each parent in open
274	274	court that parental and custodial rights and duties may be subject
275	275	to 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	SECTION 13. Section 262.205(b), Family Code, is amended to
283	283	read as follows:
284	284	(b) After the hearing, the court may grant the request to
285	285	remove the child from the parent, managing conservator, possessory
286	286	conservator, guardian, caretaker, or custodian entitled to
287	287	possession of the child if the court finds sufficient evidence to
288	288	produce in the mind of a reasonable person a firm belief or
289	289	conviction [satisfy a person of ordinary prudence and caution]
290	290	that:
291	291	(1) reasonable efforts have been made to prevent or
292	292	eliminate the need to remove the child from the child's home; and
293	293	(2) allowing the child to remain in the home would be
294	294	contrary to the child's welfare.
295	295	SECTION 14. Subchapter C, Chapter 262, Family Code, is
296	296	amended by adding Section 262.206 to read as follows:
297	297	Sec. 262.206. EX PARTE HEARINGS PROHIBITED. Unless
298	298	otherwise authorized by law, a hearing held by a court in a suit
299	299	under this chapter may not be ex parte.
300	300	SECTION 15. Section 263.401, Family Code, is amended to
301	301	read as follows:
302	302	Sec. 263.401. DISMISSAL AFTER ONE YEAR; NEW TRIALS;
303	303	EXTENSION. (a) Unless the court has commenced the trial on the
304	304	merits or granted an extension under Subsection (b) or (b-1), on the
305	305	first Monday after the first anniversary of the date the court
306	306	rendered a temporary order appointing the department as temporary
307	307	managing conservator, the court's jurisdiction over [court shall
308	308	dismiss] the suit affecting the parent-child relationship filed by
309	309	the department that requests termination of the parent-child
310	310	relationship or requests that the department be named conservator
311	311	of the child is terminated and the suit is automatically dismissed
312	312	without a court order.
313	313	(b) Unless the court has commenced the trial on the merits,
314	314	the court may not retain the suit on the court's docket after the
315	315	time described by Subsection (a) unless the court finds that
316	316	extraordinary circumstances necessitate the child remaining in the
317	317	temporary managing conservatorship of the department and that
318	318	continuing the appointment of the department as temporary managing
319	319	conservator is in the best interest of the child. If the court
320	320	makes those findings, the court may retain the suit on the court's
321	321	docket for a period not to exceed 180 days after the time described
322	322	by Subsection (a). If the court retains the suit on the court's
323	323	docket, the court shall render an order in which the court:
324	324	(1) schedules the new date on which the suit will be
325	325	automatically dismissed if the trial on the merits has not
326	326	commenced, which date must be not later than the 180th day after the
327	327	time described by Subsection (a);
328	328	(2) makes further temporary orders for the safety and
329	329	welfare of the child as necessary to avoid further delay in
330	330	resolving the suit; and
331	331	(3) sets the trial on the merits on a date not later
332	332	than the date specified under Subdivision (1).
333	333	(b-1) If, after commencement of the initial trial on the
334	334	merits within the time required by Subsection (a) or (b), the court
335	335	grants a motion for a new trial or mistrial, or the case is remanded
336	336	to the court by an appellate court following an appeal of the
337	337	court's final order, the court shall retain the suit on the court's
338	338	docket and render an order in which the court:
339	339	(1) schedules a new date on which the suit will be
340	340	automatically dismissed if the new trial has not commenced, which
341	341	must be a date not later than the 180th day after the date on which:
342	342	(A) the motion for a new trial or mistrial is
343	343	granted; or
344	344	(B) the appellate court remanded the case;
345	345	(2) makes further temporary orders for the safety and
346	346	welfare of the child as necessary to avoid further delay in
347	347	resolving the suit; and
348	348	(3) sets the new trial on the merits for a date not
349	349	later than the date specified under Subdivision (1).
350	350	(c) If the court grants an extension under Subsection (b) or
351	351	(b-1) but does not commence the trial on the merits before the
352	352	dismissal date, the court's jurisdiction over [court shall dismiss]
353	353	the suit is terminated and the suit is automatically dismissed
354	354	without a court order. The court may not grant an additional
355	355	extension that extends the suit beyond the required date for
356	356	dismissal under Subsection (b) or (b-1), as applicable.
357	357	SECTION 16. Section 264.009(a), Family Code, is amended to
358	358	read as follows:
359	359	(a) Except as provided by Subsection (b)[, (c),] or (f), in
360	360	any action under this code, the department shall be represented in
361	361	court by the county attorney of the county where the action is
362	362	brought, unless the district attorney or criminal district attorney
363	363	of the county elects to provide representation.
364	364	SECTION 17. The following provisions are repealed:
365	365	(1) Article 56.54(j), Code of Criminal Procedure;
366	366	(2) Section 201.014(b), Family Code;
367	367	(3) Subchapter C, Chapter 201, Family Code; and
368	368	(4) Sections 264.009(c), (d), and (e), Family Code.
369	369	SECTION 18. (a) Except as provided by Subsection (b) of
370	370	this section, the changes in law made by this Act apply only to a
371	371	suit filed by the Department of Family and Protective Services on or
372	372	after the effective date of this Act. A suit filed by the
373	373	department before that date is governed by the law in effect on the
374	374	date the suit was filed, and the former law is continued in effect
375	375	for that purpose.
376	376	(b) The changes made by this Act to Section 263.401, Family
377	377	Code, apply only to a suit affecting the parent-child relationship
378	378	pending in a trial court on the effective date of this Act or filed
379	379	on or after the effective date of this Act. A suit affecting the
380	380	parent-child relationship in which a final order is rendered before
381	381	the effective date of this Act is governed by the law in effect on
382	382	the date the order was rendered, and the former law is continued in
383	383	effect for that purpose.
384	384	SECTION 19. This Act takes effect September 1, 2017.