87R1785 MCK-D
By: Hughes S.B. No. 190
A BILL TO BE ENTITLED
AN ACT
relating to the procedures and grounds for terminating the
parent-child relationship, for taking possession of a child, and
for certain hearings in a suit affecting the parent-child
relationship involving the Department of Family and Protective
Services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 161.001(c), Family Code, is amended to
read as follows:
(c) Evidence of one or more of the following does not
constitute clear and convincing evidence sufficient for a court to
[A court may not] make a finding under Subsection (b) and order
termination of the parent-child relationship [based on evidence
that the parent]:
(1) the parent homeschooled the child;
(2) the parent is economically disadvantaged;
(3) the parent has been charged with a nonviolent
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;
(4) the parent provided or administered low-THC
cannabis to a child for whom the low-THC cannabis was prescribed
under Chapter 169, Occupations Code; [or]
(5) the parent declined immunization for the child for
reasons of conscience, including a religious belief; or
(6) the parent allowed the child to engage in
independent activities that are appropriate and typical for the
child's level of maturity, physical condition, developmental
abilities, or culture.
SECTION 2. Section 161.101, Family Code, is amended to read
as follows:
Sec. 161.101. PETITION ALLEGATIONS; PETITION AND MOTION
REQUIREMENTS. (a) A petition for the termination of the
parent-child relationship is sufficient without the necessity of
specifying the underlying facts if the petition alleges in the
statutory language the ground for the termination and that
termination is in the best interest of the child.
(b) A petition or motion filed by the Department of Family
and Protective Services in a suit for termination of the
parent-child relationship is subject to Chapter 10, Civil Practice
and Remedies Code, and Rule 13, Texas Rules of Civil Procedure.
SECTION 3. Section 261.001(4), Family Code, is amended to
read as follows:
(4) "Neglect" means an act or failure to act by a
person responsible for a child's care, custody, or welfare
evidencing the person's blatant disregard for the consequences of
the act or failure to act that results in harm to the child or that
creates an immediate danger to the child's physical health or
safety and:
(A) includes:
(i) the leaving of a child in a situation
where the child would be exposed to an immediate danger [a
substantial risk] of physical or mental harm, without arranging for
necessary care for the child, and the demonstration of an intent not
to return by a parent, guardian, or managing or possessory
conservator of the child;
(ii) the following acts or omissions by a
person:
(a) placing a child in or failing to
remove a child from a situation that a reasonable person would
realize requires judgment or actions beyond the child's level of
maturity, physical condition, or mental abilities and that results
in bodily injury or an immediate danger [a substantial risk] of
[immediate] harm to the child;
(b) failing to seek, obtain, or follow
through with medical care for a child, with the failure resulting in
or presenting an immediate danger [a substantial risk] of death,
disfigurement, or bodily injury or with the failure resulting in an
observable and material impairment to the growth, development, or
functioning of the child;
(c) the failure to provide a child
with food, clothing, or shelter necessary to sustain the life or
health of the child, excluding failure caused primarily by
financial inability unless relief services had been offered and
refused;
(d) placing a child in or failing to
remove the child from a situation in which the child would be
exposed to an immediate danger [a substantial risk] of sexual
conduct harmful to the child; or
(e) placing a child in or failing to
remove the child from a situation in which the child would be
exposed to acts or omissions that constitute abuse under
Subdivision (1)(E), (F), (G), (H), or (K) committed against another
child;
(iii) the failure by the person responsible
for a child's care, custody, or welfare to permit the child to
return to the child's home without arranging for the necessary care
for the child after the child has been absent from the home for any
reason, including having been in residential placement or having
run away; or
(iv) a negligent act or omission by an
employee, volunteer, or other individual working under the auspices
of a facility or program, including failure to comply with an
individual treatment plan, plan of care, or individualized service
plan, that causes or may cause substantial emotional harm or
physical injury to, or the death of, a child served by the facility
or program as further described by rule or policy; and
(B) does not include:
(i) the refusal by a person responsible for
a child's care, custody, or welfare to permit the child to remain in
or return to the child's home resulting in the placement of the
child in the conservatorship of the department if:
(a) [(i)] the child has a severe
emotional disturbance;
(b) [(ii)] the person's refusal is
based solely on the person's inability to obtain mental health
services necessary to protect the safety and well-being of the
child; and
(c) [(iii)] the person has exhausted
all reasonable means available to the person to obtain the mental
health services described by Sub-subparagraph (b); or
(ii) allowing the child to engage in
independent activities that are appropriate and typical for the
child's level of maturity, physical condition, developmental
abilities, or culture [Subparagraph (ii)].
SECTION 4. Section 262.116(a), Family Code, is amended to
read as follows:
(a) The Department of Family and Protective Services may not
take possession of a child under this subchapter based on evidence
that the parent:
(1) homeschooled the child;
(2) is economically disadvantaged;
(3) has been charged with a nonviolent 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;
(4) provided or administered low-THC cannabis to a
child for whom the low-THC cannabis was prescribed under Chapter
169, Occupations Code; [or]
(5) declined immunization for the child for reasons of
conscience, including a religious belief; or
(6) allowed the child to engage in independent
activities that are appropriate and typical for the child's level
of maturity, physical condition, developmental abilities, or
culture.
SECTION 5. Section 262.201, Family Code, is amended by
amending Subsections (g), (h), (j), and (n) and adding Subsections
(g-1), (j-1), and (q) to read as follows:
(g) In a suit filed under Section 262.101 or 262.105, 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 from whom the child is removed unless the court finds
sufficient evidence to satisfy a person of ordinary prudence and
caution that:
(1) there was a danger to the physical health or safety
of the child, including a danger that the child would be a victim of
trafficking under Section 20A.02 or 20A.03, Penal Code, which was
caused by an act or failure to act of the person entitled to
possession and for the child to remain in the home is contrary to
the welfare of the child;
(2) the urgent need for protection required the
immediate removal of the child and reasonable efforts, consistent
with the circumstances and providing for the safety of the child,
were made to eliminate or prevent the child's removal; and
(3) reasonable efforts have been made to enable the
child to return home, but there is a substantial risk of a
continuing danger if the child is returned home.
(g-1) In a suit filed under Section 262.101 or 262.105, if
the court does not order the return of the child under Subsection
(g) and finds that another parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian entitled to
possession did not cause the immediate danger to the physical
health or safety of the child or was not the perpetrator of the
neglect or abuse alleged in the suit, the court shall order
possession of the child by that person unless the court finds,
specific to each person entitled to possession, that:
(1) the person cannot be located after the exercise of
due diligence by the Department of Family and Protective Services,
or the person is unable or unwilling to take possession of the
child; or
(2) reasonable efforts have been made to enable the
person's possession of the child, but possession by that person
presents a continuing danger to the physical health or safety of the
child caused by an act or failure to act of the person, including a
danger that the child would be a victim of trafficking under Section
20A.02 or 20A.03, Penal Code.
(h) In a suit filed under Section 262.101 or 262.105, if the
court finds sufficient evidence to make the applicable finding
under Subsection (g) or (g-1) [satisfy a person of ordinary
prudence and caution that there is a continuing danger to the
physical health or safety of the child and for the child to remain
in the home is contrary to the welfare of the child], the court
shall issue an appropriate temporary order under Chapter 105.
(j) In a suit filed under Section 262.113, at the conclusion
of the full adversary hearing, the court shall issue an appropriate
temporary order under Chapter 105 if the court finds, with respect
to the parent, managing conservator, possessory conservator,
guardian, caretaker, or custodian entitled to possession from whom
the Department of Family and Protective Services is seeking
removal, [sufficient evidence to satisfy a person of ordinary
prudence and caution] that:
(1) there is a continuing danger to the physical
health or safety of the child caused by an act or failure to act of
the person entitled to possession of the child and continuation of
the child in the person's home would be contrary to the child's
welfare; and
(2) reasonable efforts, consistent with the
circumstances and providing for the safety of the child, were made
to prevent or eliminate the need for the removal of the child.
(j-1) In a suit filed under Section 262.113, if the court
orders the removal of the child under Subsection (j) and finds that
another parent, managing conservator, possessory conservator,
guardian, caretaker, or custodian entitled to possession did not
cause the continuing danger to the physical health or safety of the
child or was not the perpetrator of the neglect or abuse alleged in
the suit, the court shall order possession of the child by that
person unless the court finds, specific to each person entitled to
possession, that:
(1) the person cannot be located after the exercise of
due diligence by the Department of Family and Protective Services
or the person is unable or unwilling to take possession of the
child; or
(2) reasonable efforts have been made to enable the
person's possession of the child, but possession by that person
presents a continuing danger to the physical health or safety of the
child caused by an act or failure to act of the person, including a
danger that the child would be a victim of trafficking under Section
20A.02 or 20A.03, Penal Code.
(n) If the [The] court does not order possession of [shall
place] a child by a [removed from the child's custodial parent with
the child's noncustodial] parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian entitled to
possession under Subsection (g), (g-1), (j), or (j-1), the court
shall place the child [or] with a relative of the child [if
placement with the noncustodial parent is inappropriate,] unless
the court finds that the placement with [the noncustodial parent
or] a relative is not in the best interest of the child.
(q) On receipt of a written request for possession of the
child from a parent, managing conservator, possessory conservator,
guardian, caretaker, or custodian entitled to possession of the
child who was not located before the adversary hearing, the
Department of Family and Protective Services shall notify the court
and request a hearing to determine whether the parent, managing
conservator, possessory conservator, guardian, caretaker, or
custodian is entitled to possession of the child under Subsection
(g-1) or (j-1).
SECTION 6. Section 263.002, Family Code, is amended by
amending Subsection (c) and adding Subsection (d) to read as
follows:
(c) At each permanency hearing before the final order, the
court shall review the placement of each child in the temporary
managing conservatorship of the department who has not been
returned to the child's home. At the end of the hearing, the court
shall order the department to return the child to the child's parent
or parents unless the court finds, with respect to each parent,
that:
(1) there is a continuing danger to the physical
health or safety of the child; and
(2) returning the child to the child's parent or
parents [The court shall make a finding on whether returning the
child to the child's home is safe and appropriate, whether the
return is in the best interest of the child, and whether it] is
contrary to the welfare of the child [for the child to return home].
(d) This section does not prohibit the court from rendering
an order under Section 263.403.
SECTION 7. Subchapter E, Chapter 263, Family Code, is
amended by adding Section 263.4011 to read as follows:
Sec. 263.4011. RENDERING FINAL ORDER; EXTENSION. (a) On
timely commencement of the trial on the merits under Section
263.401, the court shall render a final order not later than the
90th day after the date the trial commences.
(b) The 90-day period for rendering a final order under
Subsection (a) is not tolled for any recess during the trial.
(c) If the court finds that extraordinary circumstances
necessitate extending the 90-day period under Subsection (a), the
court may grant one extension of that date for not longer than 30
days. The court shall render a written order:
(1) specifying the grounds on which the extension is
granted; and
(2) requiring a final order to be rendered not later
than the 30th day after the date the extension is granted.
(d) A party may file a mandamus proceeding if the court
fails to render a final order within the time required by this
section.
SECTION 8. Section 263.403(a-1), Family Code, is amended to
read as follows:
(a-1) Unless the court has granted an extension under
Section 263.401(b), the department or the parent may request the
court to retain jurisdiction for an additional six months as
necessary for a parent to complete the remaining requirements under
[in] a service plan [and specified] in a transition monitored
return under Subsection (a)(2)(B) [the temporary order that are
mandatory for the child's return].
SECTION 9. Section 264.203, Family Code, is amended to read
as follows:
Sec. 264.203. REQUIRED PARTICIPATION. (a) The department
may file a suit requesting [Except as provided by Subsection (d),]
the court to render a temporary [on request of the department may]
order requiring the parent, managing conservator, guardian, or
other member of the [subject] child's household to:
(1) participate in the services for which the
department makes a referral or services the department provides or
purchases for:
(A) alleviating the effects of the abuse or
neglect that has occurred; [or]
(B) reducing a continuing danger to the physical
health or safety of the child caused by an act or failure to act of
the parent, managing conservator, guardian, or other member of the
child's household [the reasonable likelihood that the child may be
abused or neglected in the immediate or foreseeable future]; or
(C) reducing a substantial risk of abuse or
neglect caused by an act or failure to act of the parent, managing
conservator, guardian, or member of the child's household; and
(2) permit the child and any siblings of the child to
receive the services.
(b) A suit requesting an order under this section may be
filed in a court with jurisdiction to hear the suit in the county in
which the child is located [The department may request the court to
order the parent, managing conservator, guardian, or other member
of the child's household to participate in the services whether the
child resides in the home or has been removed from the home].
(c) Except as otherwise provided by this subchapter, the
suit is governed by the Texas Rules of Civil Procedure applicable to
the filing of an original lawsuit [If the person ordered to
participate in the services fails to follow the court's order, the
court may impose appropriate sanctions in order to protect the
health and safety of the child, including the removal of the child
as specified by Chapter 262].
(d) The petition shall be supported by a sworn affidavit by
a person based on personal knowledge and stating facts sufficient
to support a finding that:
(1) the child has been a victim of abuse or neglect or
is at substantial risk of abuse or neglect; and
(2) there is a continuing danger to the physical
health or safety of the child caused by an act or failure to act of
the parent, managing conservator, guardian, or other member of the
child's household unless that person participates in services
requested by the department [If the court does not order the person
to participate, the court in writing shall specify the reasons for
not ordering participation].
(e) In a suit filed under this section, the court may render
a temporary restraining order as provided by Section 105.001.
(f) The court shall hold a hearing on the petition not later
than the 14th day after the date the petition is filed unless the
court finds good cause for extending that date for not more than 14
days.
(g) The court shall appoint an attorney ad litem to
represent the interests of the child immediately after the filing
but before the hearing to ensure adequate representation of the
child. The attorney ad litem for the child shall have the powers
and duties of an attorney ad litem for a child under Chapter 107.
(h) The court shall appoint an attorney ad litem to
represent the interests of a parent for whom participation in
services is being requested immediately after the filing but before
the hearing to ensure adequate representation of the parent. The
attorney ad litem for the parent shall have the powers and duties of
an attorney ad litem for a parent under Section 107.0131.
(i) Before commencement of the hearing, the court shall
inform each parent of:
(1) the parent's right to be represented by an
attorney; and
(2) for a parent who is indigent and appears in
opposition to the motion, the parent's right to a court-appointed
attorney.
(j) If a parent claims indigence, the court shall require
the parent to complete and file with the court an affidavit of
indigence. The court may consider additional evidence to determine
whether the parent is indigent, including evidence relating to the
parent's income, source of income, assets, property ownership,
benefits paid in accordance with a federal, state, or local public
assistance program, outstanding obligations, and necessary
expenses and the number and ages of the parent's dependents. If the
court determines the parent is indigent, the attorney ad litem
appointed to represent the interests of the parent may continue the
representation. If the court determines the parent is not
indigent, the court shall discharge the attorney ad litem from the
appointment after the hearing and shall order the parent to pay the
cost of the attorney ad litem's representation.
(k) The court may, for good cause shown, postpone any
subsequent proceedings for not more than seven days after the date
of the attorney ad litem's discharge to allow the parent to hire an
attorney or to provide the parent's attorney time to prepare for the
subsequent proceeding.
(l) An order may be rendered under this section only after
notice and hearing.
(m) At the conclusion of the hearing, the court shall deny
the petition unless the court finds by a preponderance of evidence
that:
(1) abuse or neglect has occurred or there is a
substantial risk of abuse or neglect or continuing danger to the
physical health or safety of the child caused by an act or failure
to act of the parent, managing conservator, guardian, or other
member of the child's household; and
(2) services are necessary to ensure the physical
health or safety of the child.
(n) If the court renders an order granting the petition, the
court shall:
(1) state its findings in the order;
(2) make appropriate temporary orders under Chapter
105 necessary to ensure the safety of the child; and
(3) order the participation in specific services
narrowly tailored to address the findings made by the court under
Subsection (m).
(o) If the court finds that a parent, managing conservator,
guardian, or other member of the child's household did not cause the
continuing danger to the physical health or safety of the child or
the substantial risk of abuse or neglect, or was not the perpetrator
of the abuse or neglect alleged, the court may not require that
person to participate in services ordered under Subsection (n).
(p) Not later than the 90th day after the date the court
renders an order under this section, the court shall hold a hearing
to review the status of each person required to participate in the
services and the child and the services provided, purchased, or
referred. The court shall set subsequent review hearings every 90
days to review the continued need for the order.
(q) An order rendered under this section expires on the
180th day after the date the order is signed unless the court
extends the order as provided by Subsection (r) or (s).
(r) The court may extend an order rendered under this
section on a showing by the department of a continuing need for the
order, after notice and hearing. Except as provided by Subsection
(s), the court may extend the order only one time for not more than
180 days.
(s) The court may extend an order rendered under this
section for not more than an additional 180 days only if:
(1) the court finds that:
(A) the extension is necessary to allow the
person required to participate in services under the plan of
service time to complete those services;
(B) the department made a good faith effort to
timely provide the services to the person;
(C) the person made a good faith effort to
complete the services; and
(D) the completion of the services is necessary
to ensure the physical health and safety of the child; and
(2) the extension is requested by the person or the
person's attorney.
(t) At any time, a person affected by the order may request
the court to terminate the order. The court shall terminate the
order on finding the order is no longer needed.
SECTION 10. Section 161.101, Family Code, as amended by
this Act, applies only to a petition or motion filed by the
Department of Family and Protective Services on or after the
effective date of this Act. A petition or motion filed by the
department before that date is governed by the law in effect on the
date the petition or motion was filed, and the former law is
continued in effect for that purpose.
SECTION 11. 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.
SECTION 12. This Act takes effect September 1, 2021.