Texas 2021 - 87th Regular

Texas Senate Bill SB190 Compare Versions

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

Old	New	Differences
1	1	87R1785 MCK-D
2	2	By: Hughes S.B. No. 190
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the procedures and grounds for terminating the
8	8	parent-child relationship, for taking possession of a child, and
9	9	for certain hearings in a suit affecting the parent-child
10	10	relationship involving the Department of Family and Protective
11	11	Services.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 161.001(c), Family Code, is amended to
14	14	read as follows:
15	15	(c) Evidence of one or more of the following does not
16	16	constitute clear and convincing evidence sufficient for a court to
17	17	[A court may not] make a finding under Subsection (b) and order
18	18	termination of the parent-child relationship [based on evidence
19	19	that the parent]:
20	20	(1) the parent homeschooled the child;
21	21	(2) the parent is economically disadvantaged;
22	22	(3) the parent has been charged with a nonviolent
23	23	misdemeanor offense other than:
24	24	(A) an offense under Title 5, Penal Code;
25	25	(B) an offense under Title 6, Penal Code; or
26	26	(C) an offense that involves family violence, as
27	27	defined by Section 71.004 of this code;
28	28	(4) the parent provided or administered low-THC
29	29	cannabis to a child for whom the low-THC cannabis was prescribed
30	30	under Chapter 169, Occupations Code; [or]
31	31	(5) the parent declined immunization for the child for
32	32	reasons of conscience, including a religious belief; or
33	33	(6) the parent allowed the child to engage in
34	34	independent activities that are appropriate and typical for the
35	35	child's level of maturity, physical condition, developmental
36	36	abilities, or culture.
37	37	SECTION 2. Section 161.101, Family Code, is amended to read
38	38	as follows:
39	39	Sec. 161.101. PETITION ALLEGATIONS; PETITION AND MOTION
40	40	REQUIREMENTS. (a) A petition for the termination of the
41	41	parent-child relationship is sufficient without the necessity of
42	42	specifying the underlying facts if the petition alleges in the
43	43	statutory language the ground for the termination and that
44	44	termination is in the best interest of the child.
45	45	(b) A petition or motion filed by the Department of Family
46	46	and Protective Services in a suit for termination of the
47	47	parent-child relationship is subject to Chapter 10, Civil Practice
48	48	and Remedies Code, and Rule 13, Texas Rules of Civil Procedure.
49	49	SECTION 3. Section 261.001(4), Family Code, is amended to
50	50	read as follows:
51	51	(4) "Neglect" means an act or failure to act by a
52	52	person responsible for a child's care, custody, or welfare
53	53	evidencing the person's blatant disregard for the consequences of
54	54	the act or failure to act that results in harm to the child or that
55	55	creates an immediate danger to the child's physical health or
56	56	safety and:
57	57	(A) includes:
58	58	(i) the leaving of a child in a situation
59	59	where the child would be exposed to an immediate danger [a
60	60	substantial risk] of physical or mental harm, without arranging for
61	61	necessary care for the child, and the demonstration of an intent not
62	62	to return by a parent, guardian, or managing or possessory
63	63	conservator of the child;
64	64	(ii) the following acts or omissions by a
65	65	person:
66	66	(a) placing a child in or failing to
67	67	remove a child from a situation that a reasonable person would
68	68	realize requires judgment or actions beyond the child's level of
69	69	maturity, physical condition, or mental abilities and that results
70	70	in bodily injury or an immediate danger [a substantial risk] of
71	71	[immediate] harm to the child;
72	72	(b) failing to seek, obtain, or follow
73	73	through with medical care for a child, with the failure resulting in
74	74	or presenting an immediate danger [a substantial risk] of death,
75	75	disfigurement, or bodily injury or with the failure resulting in an
76	76	observable and material impairment to the growth, development, or
77	77	functioning of the child;
78	78	(c) the failure to provide a child
79	79	with food, clothing, or shelter necessary to sustain the life or
80	80	health of the child, excluding failure caused primarily by
81	81	financial inability unless relief services had been offered and
82	82	refused;
83	83	(d) placing a child in or failing to
84	84	remove the child from a situation in which the child would be
85	85	exposed to an immediate danger [a substantial risk] of sexual
86	86	conduct harmful to the child; or
87	87	(e) placing a child in or failing to
88	88	remove the child from a situation in which the child would be
89	89	exposed to acts or omissions that constitute abuse under
90	90	Subdivision (1)(E), (F), (G), (H), or (K) committed against another
91	91	child;
92	92	(iii) the failure by the person responsible
93	93	for a child's care, custody, or welfare to permit the child to
94	94	return to the child's home without arranging for the necessary care
95	95	for the child after the child has been absent from the home for any
96	96	reason, including having been in residential placement or having
97	97	run away; or
98	98	(iv) a negligent act or omission by an
99	99	employee, volunteer, or other individual working under the auspices
100	100	of a facility or program, including failure to comply with an
101	101	individual treatment plan, plan of care, or individualized service
102	102	plan, that causes or may cause substantial emotional harm or
103	103	physical injury to, or the death of, a child served by the facility
104	104	or program as further described by rule or policy; and
105	105	(B) does not include:
106	106	(i) the refusal by a person responsible for
107	107	a child's care, custody, or welfare to permit the child to remain in
108	108	or return to the child's home resulting in the placement of the
109	109	child in the conservatorship of the department if:
110	110	(a) [(i)] the child has a severe
111	111	emotional disturbance;
112	112	(b) [(ii)] the person's refusal is
113	113	based solely on the person's inability to obtain mental health
114	114	services necessary to protect the safety and well-being of the
115	115	child; and
116	116	(c) [(iii)] the person has exhausted
117	117	all reasonable means available to the person to obtain the mental
118	118	health services described by Sub-subparagraph (b); or
119	119	(ii) allowing the child to engage in
120	120	independent activities that are appropriate and typical for the
121	121	child's level of maturity, physical condition, developmental
122	122	abilities, or culture [Subparagraph (ii)].
123	123	SECTION 4. Section 262.116(a), Family Code, is amended to
124	124	read as follows:
125	125	(a) The Department of Family and Protective Services may not
126	126	take possession of a child under this subchapter based on evidence
127	127	that the parent:
128	128	(1) homeschooled the child;
129	129	(2) is economically disadvantaged;
130	130	(3) has been charged with a nonviolent misdemeanor
131	131	offense other than:
132	132	(A) an offense under Title 5, Penal Code;
133	133	(B) an offense under Title 6, Penal Code; or
134	134	(C) an offense that involves family violence, as
135	135	defined by Section 71.004 of this code;
136	136	(4) provided or administered low-THC cannabis to a
137	137	child for whom the low-THC cannabis was prescribed under Chapter
138	138	169, Occupations Code; [or]
139	139	(5) declined immunization for the child for reasons of
140	140	conscience, including a religious belief; or
141	141	(6) allowed the child to engage in independent
142	142	activities that are appropriate and typical for the child's level
143	143	of maturity, physical condition, developmental abilities, or
144	144	culture.
145	145	SECTION 5. Section 262.201, Family Code, is amended by
146	146	amending Subsections (g), (h), (j), and (n) and adding Subsections
147	147	(g-1), (j-1), and (q) to read as follows:
148	148	(g) In a suit filed under Section 262.101 or 262.105, at the
149	149	conclusion of the full adversary hearing, the court shall order the
150	150	return of the child to the parent, managing conservator, possessory
151	151	conservator, guardian, caretaker, or custodian entitled to
152	152	possession from whom the child is removed unless the court finds
153	153	sufficient evidence to satisfy a person of ordinary prudence and
154	154	caution that:
155	155	(1) there was a danger to the physical health or safety
156	156	of the child, including a danger that the child would be a victim of
157	157	trafficking under Section 20A.02 or 20A.03, Penal Code, which was
158	158	caused by an act or failure to act of the person entitled to
159	159	possession and for the child to remain in the home is contrary to
160	160	the welfare of the child;
161	161	(2) the urgent need for protection required the
162	162	immediate removal of the child and reasonable efforts, consistent
163	163	with the circumstances and providing for the safety of the child,
164	164	were made to eliminate or prevent the child's removal; and
165	165	(3) reasonable efforts have been made to enable the
166	166	child to return home, but there is a substantial risk of a
167	167	continuing danger if the child is returned home.
168	168	(g-1) In a suit filed under Section 262.101 or 262.105, if
169	169	the court does not order the return of the child under Subsection
170	170	(g) and finds that another parent, managing conservator, possessory
171	171	conservator, guardian, caretaker, or custodian entitled to
172	172	possession did not cause the immediate danger to the physical
173	173	health or safety of the child or was not the perpetrator of the
174	174	neglect or abuse alleged in the suit, the court shall order
175	175	possession of the child by that person unless the court finds,
176	176	specific to each person entitled to possession, that:
177	177	(1) the person cannot be located after the exercise of
178	178	due diligence by the Department of Family and Protective Services,
179	179	or the person is unable or unwilling to take possession of the
180	180	child; or
181	181	(2) reasonable efforts have been made to enable the
182	182	person's possession of the child, but possession by that person
183	183	presents a continuing danger to the physical health or safety of the
184	184	child caused by an act or failure to act of the person, including a
185	185	danger that the child would be a victim of trafficking under Section
186	186	20A.02 or 20A.03, Penal Code.
187	187	(h) In a suit filed under Section 262.101 or 262.105, if the
188	188	court finds sufficient evidence to make the applicable finding
189	189	under Subsection (g) or (g-1) [satisfy a person of ordinary
190	190	prudence and caution that there is a continuing danger to the
191	191	physical health or safety of the child and for the child to remain
192	192	in the home is contrary to the welfare of the child], the court
193	193	shall issue an appropriate temporary order under Chapter 105.
194	194	(j) In a suit filed under Section 262.113, at the conclusion
195	195	of the full adversary hearing, the court shall issue an appropriate
196	196	temporary order under Chapter 105 if the court finds, with respect
197	197	to the parent, managing conservator, possessory conservator,
198	198	guardian, caretaker, or custodian entitled to possession from whom
199	199	the Department of Family and Protective Services is seeking
200	200	removal, [sufficient evidence to satisfy a person of ordinary
201	201	prudence and caution] that:
202	202	(1) there is a continuing danger to the physical
203	203	health or safety of the child caused by an act or failure to act of
204	204	the person entitled to possession of the child and continuation of
205	205	the child in the person's home would be contrary to the child's
206	206	welfare; and
207	207	(2) reasonable efforts, consistent with the
208	208	circumstances and providing for the safety of the child, were made
209	209	to prevent or eliminate the need for the removal of the child.
210	210	(j-1) In a suit filed under Section 262.113, if the court
211	211	orders the removal of the child under Subsection (j) and finds that
212	212	another parent, managing conservator, possessory conservator,
213	213	guardian, caretaker, or custodian entitled to possession did not
214	214	cause the continuing danger to the physical health or safety of the
215	215	child or was not the perpetrator of the neglect or abuse alleged in
216	216	the suit, the court shall order possession of the child by that
217	217	person unless the court finds, specific to each person entitled to
218	218	possession, that:
219	219	(1) the person cannot be located after the exercise of
220	220	due diligence by the Department of Family and Protective Services
221	221	or the person is unable or unwilling to take possession of the
222	222	child; or
223	223	(2) reasonable efforts have been made to enable the
224	224	person's possession of the child, but possession by that person
225	225	presents a continuing danger to the physical health or safety of the
226	226	child caused by an act or failure to act of the person, including a
227	227	danger that the child would be a victim of trafficking under Section
228	228	20A.02 or 20A.03, Penal Code.
229	229	(n) If the [The] court does not order possession of [shall
230	230	place] a child by a [removed from the child's custodial parent with
231	231	the child's noncustodial] parent, managing conservator, possessory
232	232	conservator, guardian, caretaker, or custodian entitled to
233	233	possession under Subsection (g), (g-1), (j), or (j-1), the court
234	234	shall place the child [or] with a relative of the child [if
235	235	placement with the noncustodial parent is inappropriate,] unless
236	236	the court finds that the placement with [the noncustodial parent
237	237	or] a relative is not in the best interest of the child.
238	238	(q) On receipt of a written request for possession of the
239	239	child from a parent, managing conservator, possessory conservator,
240	240	guardian, caretaker, or custodian entitled to possession of the
241	241	child who was not located before the adversary hearing, the
242	242	Department of Family and Protective Services shall notify the court
243	243	and request a hearing to determine whether the parent, managing
244	244	conservator, possessory conservator, guardian, caretaker, or
245	245	custodian is entitled to possession of the child under Subsection
246	246	(g-1) or (j-1).
247	247	SECTION 6. Section 263.002, Family Code, is amended by
248	248	amending Subsection (c) and adding Subsection (d) to read as
249	249	follows:
250	250	(c) At each permanency hearing before the final order, the
251	251	court shall review the placement of each child in the temporary
252	252	managing conservatorship of the department who has not been
253	253	returned to the child's home. At the end of the hearing, the court
254	254	shall order the department to return the child to the child's parent
255	255	or parents unless the court finds, with respect to each parent,
256	256	that:
257	257	(1) there is a continuing danger to the physical
258	258	health or safety of the child; and
259	259	(2) returning the child to the child's parent or
260	260	parents [The court shall make a finding on whether returning the
261	261	child to the child's home is safe and appropriate, whether the
262	262	return is in the best interest of the child, and whether it] is
263	263	contrary to the welfare of the child [for the child to return home].
264	264	(d) This section does not prohibit the court from rendering
265	265	an order under Section 263.403.
266	266	SECTION 7. Subchapter E, Chapter 263, Family Code, is
267	267	amended by adding Section 263.4011 to read as follows:
268	268	Sec. 263.4011. RENDERING FINAL ORDER; EXTENSION. (a) On
269	269	timely commencement of the trial on the merits under Section
270	270	263.401, the court shall render a final order not later than the
271	271	90th day after the date the trial commences.
272	272	(b) The 90-day period for rendering a final order under
273	273	Subsection (a) is not tolled for any recess during the trial.
274	274	(c) If the court finds that extraordinary circumstances
275	275	necessitate extending the 90-day period under Subsection (a), the
276	276	court may grant one extension of that date for not longer than 30
277	277	days. The court shall render a written order:
278	278	(1) specifying the grounds on which the extension is
279	279	granted; and
280	280	(2) requiring a final order to be rendered not later
281	281	than the 30th day after the date the extension is granted.
282	282	(d) A party may file a mandamus proceeding if the court
283	283	fails to render a final order within the time required by this
284	284	section.
285	285	SECTION 8. Section 263.403(a-1), Family Code, is amended to
286	286	read as follows:
287	287	(a-1) Unless the court has granted an extension under
288	288	Section 263.401(b), the department or the parent may request the
289	289	court to retain jurisdiction for an additional six months as
290	290	necessary for a parent to complete the remaining requirements under
291	291	[in] a service plan [and specified] in a transition monitored
292	292	return under Subsection (a)(2)(B) [the temporary order that are
293	293	mandatory for the child's return].
294	294	SECTION 9. Section 264.203, Family Code, is amended to read
295	295	as follows:
296	296	Sec. 264.203. REQUIRED PARTICIPATION. (a) The department
297	297	may file a suit requesting [Except as provided by Subsection (d),]
298	298	the court to render a temporary [on request of the department may]
299	299	order requiring the parent, managing conservator, guardian, or
300	300	other member of the [subject] child's household to:
301	301	(1) participate in the services for which the
302	302	department makes a referral or services the department provides or
303	303	purchases for:
304	304	(A) alleviating the effects of the abuse or
305	305	neglect that has occurred; [or]
306	306	(B) reducing a continuing danger to the physical
307	307	health or safety of the child caused by an act or failure to act of
308	308	the parent, managing conservator, guardian, or other member of the
309	309	child's household [the reasonable likelihood that the child may be
310	310	abused or neglected in the immediate or foreseeable future]; or
311	311	(C) reducing a substantial risk of abuse or
312	312	neglect caused by an act or failure to act of the parent, managing
313	313	conservator, guardian, or member of the child's household; and
314	314	(2) permit the child and any siblings of the child to
315	315	receive the services.
316	316	(b) A suit requesting an order under this section may be
317	317	filed in a court with jurisdiction to hear the suit in the county in
318	318	which the child is located [The department may request the court to
319	319	order the parent, managing conservator, guardian, or other member
320	320	of the child's household to participate in the services whether the
321	321	child resides in the home or has been removed from the home].
322	322	(c) Except as otherwise provided by this subchapter, the
323	323	suit is governed by the Texas Rules of Civil Procedure applicable to
324	324	the filing of an original lawsuit [If the person ordered to
325	325	participate in the services fails to follow the court's order, the
326	326	court may impose appropriate sanctions in order to protect the
327	327	health and safety of the child, including the removal of the child
328	328	as specified by Chapter 262].
329	329	(d) The petition shall be supported by a sworn affidavit by
330	330	a person based on personal knowledge and stating facts sufficient
331	331	to support a finding that:
332	332	(1) the child has been a victim of abuse or neglect or
333	333	is at substantial risk of abuse or neglect; and
334	334	(2) there is a continuing danger to the physical
335	335	health or safety of the child caused by an act or failure to act of
336	336	the parent, managing conservator, guardian, or other member of the
337	337	child's household unless that person participates in services
338	338	requested by the department [If the court does not order the person
339	339	to participate, the court in writing shall specify the reasons for
340	340	not ordering participation].
341	341	(e) In a suit filed under this section, the court may render
342	342	a temporary restraining order as provided by Section 105.001.
343	343	(f) The court shall hold a hearing on the petition not later
344	344	than the 14th day after the date the petition is filed unless the
345	345	court finds good cause for extending that date for not more than 14
346	346	days.
347	347	(g) The court shall appoint an attorney ad litem to
348	348	represent the interests of the child immediately after the filing
349	349	but before the hearing to ensure adequate representation of the
350	350	child. The attorney ad litem for the child shall have the powers
351	351	and duties of an attorney ad litem for a child under Chapter 107.
352	352	(h) The court shall appoint an attorney ad litem to
353	353	represent the interests of a parent for whom participation in
354	354	services is being requested immediately after the filing but before
355	355	the hearing to ensure adequate representation of the parent. The
356	356	attorney ad litem for the parent shall have the powers and duties of
357	357	an attorney ad litem for a parent under Section 107.0131.
358	358	(i) Before commencement of the hearing, the court shall
359	359	inform each parent of:
360	360	(1) the parent's right to be represented by an
361	361	attorney; and
362	362	(2) for a parent who is indigent and appears in
363	363	opposition to the motion, the parent's right to a court-appointed
364	364	attorney.
365	365	(j) If a parent claims indigence, the court shall require
366	366	the parent to complete and file with the court an affidavit of
367	367	indigence. The court may consider additional evidence to determine
368	368	whether the parent is indigent, including evidence relating to the
369	369	parent's income, source of income, assets, property ownership,
370	370	benefits paid in accordance with a federal, state, or local public
371	371	assistance program, outstanding obligations, and necessary
372	372	expenses and the number and ages of the parent's dependents. If the
373	373	court determines the parent is indigent, the attorney ad litem
374	374	appointed to represent the interests of the parent may continue the
375	375	representation. If the court determines the parent is not
376	376	indigent, the court shall discharge the attorney ad litem from the
377	377	appointment after the hearing and shall order the parent to pay the
378	378	cost of the attorney ad litem's representation.
379	379	(k) The court may, for good cause shown, postpone any
380	380	subsequent proceedings for not more than seven days after the date
381	381	of the attorney ad litem's discharge to allow the parent to hire an
382	382	attorney or to provide the parent's attorney time to prepare for the
383	383	subsequent proceeding.
384	384	(l) An order may be rendered under this section only after
385	385	notice and hearing.
386	386	(m) At the conclusion of the hearing, the court shall deny
387	387	the petition unless the court finds by a preponderance of evidence
388	388	that:
389	389	(1) abuse or neglect has occurred or there is a
390	390	substantial risk of abuse or neglect or continuing danger to the
391	391	physical health or safety of the child caused by an act or failure
392	392	to act of the parent, managing conservator, guardian, or other
393	393	member of the child's household; and
394	394	(2) services are necessary to ensure the physical
395	395	health or safety of the child.
396	396	(n) If the court renders an order granting the petition, the
397	397	court shall:
398	398	(1) state its findings in the order;
399	399	(2) make appropriate temporary orders under Chapter
400	400	105 necessary to ensure the safety of the child; and
401	401	(3) order the participation in specific services
402	402	narrowly tailored to address the findings made by the court under
403	403	Subsection (m).
404	404	(o) If the court finds that a parent, managing conservator,
405	405	guardian, or other member of the child's household did not cause the
406	406	continuing danger to the physical health or safety of the child or
407	407	the substantial risk of abuse or neglect, or was not the perpetrator
408	408	of the abuse or neglect alleged, the court may not require that
409	409	person to participate in services ordered under Subsection (n).
410	410	(p) Not later than the 90th day after the date the court
411	411	renders an order under this section, the court shall hold a hearing
412	412	to review the status of each person required to participate in the
413	413	services and the child and the services provided, purchased, or
414	414	referred. The court shall set subsequent review hearings every 90
415	415	days to review the continued need for the order.
416	416	(q) An order rendered under this section expires on the
417	417	180th day after the date the order is signed unless the court
418	418	extends the order as provided by Subsection (r) or (s).
419	419	(r) The court may extend an order rendered under this
420	420	section on a showing by the department of a continuing need for the
421	421	order, after notice and hearing. Except as provided by Subsection
422	422	(s), the court may extend the order only one time for not more than
423	423	180 days.
424	424	(s) The court may extend an order rendered under this
425	425	section for not more than an additional 180 days only if:
426	426	(1) the court finds that:
427	427	(A) the extension is necessary to allow the
428	428	person required to participate in services under the plan of
429	429	service time to complete those services;
430	430	(B) the department made a good faith effort to
431	431	timely provide the services to the person;
432	432	(C) the person made a good faith effort to
433	433	complete the services; and
434	434	(D) the completion of the services is necessary
435	435	to ensure the physical health and safety of the child; and
436	436	(2) the extension is requested by the person or the
437	437	person's attorney.
438	438	(t) At any time, a person affected by the order may request
439	439	the court to terminate the order. The court shall terminate the
440	440	order on finding the order is no longer needed.
441	441	SECTION 10. Section 161.101, Family Code, as amended by
442	442	this Act, applies only to a petition or motion filed by the
443	443	Department of Family and Protective Services on or after the
444	444	effective date of this Act. A petition or motion filed by the
445	445	department before that date is governed by the law in effect on the
446	446	date the petition or motion was filed, and the former law is
447	447	continued in effect for that purpose.
448	448	SECTION 11. The changes in law made by this Act apply only
449	449	to a suit filed by the Department of Family and Protective Services
450	450	on or after the effective date of this Act. A suit filed by the
451	451	department before that date is governed by the law in effect on the
452	452	date the suit was filed, and the former law is continued in effect
453	453	for that purpose.
454	454	SECTION 12. This Act takes effect September 1, 2021.