HBA-SEB C.S.H.B. 2355 76(R)BILL ANALYSIS
Office of House Bill AnalysisC.S.H.B. 2355
By: Goodman
Juvenile Justice and Family Issues
4/1/1999
Committee Report (Substituted)
BACKGROUND AND PURPOSE
Due to changes in state law made by the 75th Texas Legislature and the
passage of the federal Adoption and Safe Families Act of 1997, statutes
concerning issues such as information sharing, investigations, and case
processing relating to the adoption, protection, and placement of children
may need to be amended in order to provide more uniformity in their
application. C.S.H.B. 2355 modifies those laws in many ways, including
reconciling duplicate subsections, clarifying the relationship between the
Department of Protective and Regulatory Services and the Bureau of Vital
Statistics, and establishing priorities with respect to the removal of a
child from the child's home.
RULEMAKING AUTHORITY
It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 107.051(c), Family Code, to delete text
requiring a court to appoint a private agency or person to conduct a social
study into a child's circumstances if the Department of Protective and
Regulatory Services (DPRS) has no interest in a suit involving an adoption
or possession of or access to a child.
SECTION 2. Amends Section 108.001(c), Family Code, to provide that all
records required under this section (Transmittal of Records of Suit by
Clerk) to be maintained by the bureau of vital statistics (bureau) are
confidential except as otherwise provided by law. Deletes existing text
requiring good cause for access to the records. Makes conforming changes.
SECTION 3. Amends Section 108.003, Family Code, to require that the name
and address of each parent, guardian, managing conservator, or other person
whose consent to adoption was waived or required under Chapter 162
(Adoption), rather than Chapter 159 (Uniform Interstate Family Support
Act), or whose parental rights were terminated in the adoption suit be
included on a certified report sent by the clerk of the court to the
bureau. Makes a conforming change.
SECTION 4. Amends Section 108.005, Family Code, to require the bureau to
close the record showing that the continuing, exclusive jurisdiction of a
child has been lost due to the adoption of the child. Makes conforming and
nonsubstantive changes.
SECTION 5. Amends Chapter 108, Family Code, by adding Section 108.110, as
follows:
Sec. 108.110. RELEASE OF INFORMATION BY BUREAU OF VITAL STATISTICS.
Requires the bureau to provide to DPRS adoption information as necessary
for DPRS to comply with federal law or regulations regarding the
compilation or reporting of adoption information to federal officials and
to provide other information as necessary for DPRS to administer its
duties. Authorizes the bureau to release otherwise confidential
information from the bureau's central record files to another governmental
entity that has a specific need for the information and maintains
appropriate safeguards to prevent further dissemination of the information.
SECTION 6. Amends Section 155.204, Family Code, to provide that except as
provided by Section 262.203 (Transfer of Suit), a motion to transfer by a
petitioner or movant is timely if it is made at the time the initial
pleadings are filed. Authorizes a party to file a transfer order with the
clerk of continuing, exclusive jurisdiction if a transfer order has been
rendered exercising jurisdiction under Chapter 262 (Emergency Procedures in
Suit by Governmental Entity). Requires the clerk of the court of
continuing, exclusive jurisdiction to transfer the files as provided by
this subchapter (Transfer of Continuing, Exclusive Jurisdiction) on receipt
and without a hearing.
SECTION 7. Reenacts Sections 161.211(a) and (b), Family Code, as amended
by Section 1, Chapter 600, Acts of the 75th Legislature, Regular Session,
1997, and Section 2, Chapter 601, Acts of the 75th Legislature, Regular
Session, 1997. Sections 161.211(a) and (b) relate to the validity of an
order terminating parental rights not being subject to collateral or direct
attack after the sixth month after the date the order was signed.
SECTION 8. Amends Sections 162.005(e) and (f), Family Code, as follows:
(e) Provides that unless the identity of the birth parents and their
families is already known to the adoptive parents or is readily available
through other sources, including the court records of a suit to terminate
the parent-child relationship, a copy of a report of the child's available
history is required to be edited to protect those identities from the
adoptive parents.
(f) Provides that when the bureau receives supplemental medical,
psychological, or psychiatric information about a child placed for adoption
in a child-placing agency, the bureau is required to file the information
with the original report and to furnish the information to the adoptive
parents. Authorizes the bureau, with or without request, to provide the
supplemental information to persons entitled to examine adoption records if
the adoptive parents are deceased.
SECTION 9. Amends Sections 162.006(a), (b), and (e), Family Code, to make
conforming and nonsubstantive changes.
SECTION 10. Amends Section 162.008(b), Family Code, to make conforming
changes.
SECTION 11. Amends Sections 162.018(a), (b), and (c), Family Code, to make
conforming and nonsubstantive changes.
SECTION 12. Amends Section 162.304(e), Family Code, to authorize the state
to pay an adoption subsidy if a child is eligible for the subsidy,
regardless of whether the state is the managing conservator of the child.
Makes a conforming change.
SECTION 13. Amends Section 261.101(d), Family Code, to provide that unless
waived in writing by the person making a report of child abuse or neglect,
the identity of the individual may be disclosed only as provided by Section
261.201 (Confidentiality and Disclosure of Information) or to a law
enforcement officer.
SECTION 14. Amends Section 261.201, Family Code, by amending Subsections
(b)-(d) and adding Subsection (h), as follows:
(b) Provides that a court must consider the life and safety of any person
who provides care for the child when determining whether to disclose
information that is confidential under this section.
(c) Makes a conforming change.
(d) Makes a conforming change.
(e) Makes a conforming change.
(h) Provides that this section does not apply to an investigation of child
abuse or neglect in a home or facility regulated under Chapter 42, Human
Resources Code (Regulation of Certain Facilities, Homes, and Agencies that
Provide Child-Care Services).
SECTION 15. Amends Section 261.301(b), Family Code, to require the DPRS to
perform an investigation of a facility operated, licensed, certified,
registered, or listed by DPRS as required by Subchapter E (Investigation of
Abuse or Neglect in Certain Facilities) and the Human Resources Code.
SECTION 16. Amends Section 261.303, Family Code, by amending Subsection
(c) and adding Subsection (d), as follows:
(c) Requires a court having family law jurisdiction to order records to be
released or an examination to be made at the times and places designated by
the court if a parent or person responsible for the child's care does not
consent to release of the child's prior medical, psychological, or
psychiatric records or to a medical, psychological, or psychiatric
examination of the child that is requested by DPRS or a designated agency.
(d) Requires a person, including a medical facility, to release to DPRS or
a designated agency, as part of the required reports under Section 261.103
(Report Made to Appropriate Agency), records that directly relate to the
suspected abuse or neglect without requiring parental consent or a court
order if the person makes a report under Subchapter B (Report of Abuse or
Neglect; Immunities).
SECTION 17. Amends Sections 261.305(a)-(c), Family Code, to require a
court to appoint an attorney to represent an indigent parent or person at a
hearing. Requires the fees for the appointed attorney to be paid as
provided by Chapter 107 (Special Appointments and Social Studies), rather
than by DPRS or a designated agency. Makes conforming and nonsubstantive
changes.
SECTION 18. Reenacts Section 261.405, Family Code, as amended by Chapters
162 and 1374, Acts of the 75th Legislature, Regular Session, 1997. Section
261.405 pertains to investigations in preadjudication and post-adjudication
secure juvenile facilities.
SECTION 19. Amends Section 261.406(b), Family Code, to require DPRS to
send a written report of a child abuse or neglect investigation by DPRS, as
appropriate, to the Texas Education Agency, the agency responsible for
teacher certification, the local school board or the school's, rather than
the local, governing body, and the school principal or director, unless the
principal or director is alleged to have committed the abuse or neglect,
for appropriate action. Makes a conforming change.
SECTION 20. Amends the heading of Chapter 262, Family Code, as follows:
CHAPTER 262. New title: PROCEDURES IN SUIT BY GOVERNMENTAL ENTITY
TO PROTECT HEALTH AND SAFETY OF CHILD
SECTION 21. Amends Section 262.001, Family Code, to authorize a
governmental entity with interest in a child to file a suit affecting the
parent-child relationship requesting an order, rather than an emergency
order, to take possession of the child. Provides that a child's health and
safety is the paramount concern in determining the reasonable efforts that
are required to be made with respect to preventing or eliminating the need
to remove the child from the child's home or to make it possible to return
the child to the child's home.
SECTION 22. Amends Section 262.002, Family Code, as follows:
Sec. 262.002. New title: JURISDICTION. Makes a conforming change.
SECTION 23. Amends Section 262.007(c), Family Code, to decrease from 14 to
five the number of days for which DPRS may retain possession of a child
without a court order after the child is delivered to DPRS. Makes a
conforming change.
SECTION 24. Amends the heading of Subchapter B, Chapter 262, as follows:
SUBCHAPTER B. New title: TAKING POSSESSION OF CHILD
SECTION 25. Amends Section 262.101, Family Code, to provide that an
original suit, rather than a petition or affidavit, 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 stating sufficient facts regarding the danger a
child faces and the time constraints for protecting the child. Makes
conforming changes.
SECTION 26. Amends Section 262.102(a), Family Code, to make conforming
changes.
SECTION 27. Amends Section 262.106, Family Code, by adding Subsection (d),
as follows:
(d) Provides that for the purpose of determining the first working day
after the date a child is taken into possession, the child is considered to
have been taken into possession by DPRS on the expiration of the five-day
period permitted under Section 262.007(c) or 262.110(b) (regarding
possessing a child in an emergency with the intent to return home), as
appropriate.
SECTION 28. Amends Section 262.109(d), Family Code, to authorize written
notice of taking possession of a child by DPRS or other agency to be waived
by the court at the initial hearing on a showing that the parents,
conservators, or other custodians of the child could not be located or for
other good cause.
SECTION 29. Amends Section 262.110, Family Code, to authorize DPRS to
retain possession of a child for not more than five days until a parent or
other person entitled to possession of a child takes possession of the
child. Requires DPRS to take action as though the department took
possession of the child in an emergency without a court order on the
expiration of the fifth day if a person entitled to possession of the child
does not take possession of the child. Authorizes DPRS to place a child in
foster care if the department retains possession of the child on expiration
of the fifth day.
SECTION 30. Amends Subchapter B, Chapter 262, Family Code, by adding
Section 262.113, as follows:
Sec. 262.113. FILING SUIT WITHOUT TAKING POSSESSION OF CHILD. Provides
that 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. Establishes that the affidavit must be sworn to by a person
with personal knowledge and must state facts sufficient to satisfy a person
of ordinary prudence and caution that reasonable efforts have been made to
prevent or eliminate the need to remove the child from the child's home and
that allowing the child to remain in the home would be contrary to the
child's welfare.
SECTION 31. Amends Section 262.201, Family Code, by adding Subsection (g),
to make a conforming change.
SECTION 32. Amends Section 262.2015, Family Code, as follows:
Sec. 262.2015. New title: AGGRAVATED CIRCUMSTANCES. (a) Authorizes a
court to waive the requirement of a service plan and the requirement to
make reasonable efforts to return the child. Authorizes the court to
accelerate the trial schedule. Makes those authorizations applicable if
the court finds that all reasonable efforts have been made to return the
child to a parent or that the parent has subjected the child to aggravated
circumstances.
(b) Authorizes a court to find that a parent has subjected a child to
aggravated circumstances if the parent abandoned the child without a means
of identifying the child, if the child is a victim of serious bodily injury
or sexual abuse inflicted by the parent or by another person with the
parent's consent, or the parent has engaged in conduct against the child or
against another child of the parent that would constitute an offense under
specific sections of the Penal Code, including murder, capital murder, and
manslaughter. Authorizes the court to find that a parent has subjected the
child to aggravated circumstances if the parent voluntarily left the child
alone or in the possession of another person who is not the parent for at
least six months without expressing an intent to return and without leaving
adequate child support or if the parent's parental rights have been
involuntarily terminated with regard to another child.
(c) Requires a court to conduct an initial permanency hearing within a
specific time frame on finding that reasonable efforts to prevent or
eliminate the need to remove a child or to make it possible for the child
to safely return are not required. Authorizes, but does not require,
separate notice of the permanency plan to be given with a notice of a
hearing.
(d) Requires DPRS to make reasonable efforts to finalize a child's
permanent placement. Requires the court to set the suit for trial on
specific merits in order to facilitate final placement of a child.
SECTION 33. Amends Section 262.203, Family Code, to require a court that
rendered a temporary order to transfer a suit on a motion of a party or the
court's own motion to the court of continuing, exclusive jurisdiction, if
any, or to order a transfer of the suit if grounds exist for mandatory
transfer from the court of continuing, exclusive jurisdiction or if grounds
exist for transfer based on improper venue. Authorizes a motion to
transfer a suit to be filed separately from the petition, notwithstanding
Section 155.204 (Procedure for Transfer). Provides that the motion is
timely if filed while the case is pending. Establishes that a court is not
required to transfer the suit to a court in which a parent has filed for
dissolution of marriage before a final order for the protection of the
child has been rendered.
SECTION 34. Amends Subchapter C, Chapter 262, Family Code, by adding
Section 262.205, as follows:
Sec 262.205. HEARING WHEN CHILD NOT IN POSSESSION OF GOVERNMENTAL ENTITY.
(a) Authorizes a court to render a temporary restraining order in a suit
requesting possession of a child after notice and hearing. Requires the
suit to be promptly set for hearing.
(b) Authorizes the court to grant the request to remove the child from the
person entitled to possession of the child after the hearing if the court
finds sufficient evidence that reasonable efforts have been made to prevent
the need to remove the child and allowing the child to remain in the home
would be contrary to the child's welfare.
(c) Requires the court to issue an appropriate temporary order under
Chapter 105 (Settings, Hearings, and Orders) and inform each parent in open
court that parental and custodial rights may be subject to restriction or
termination unless the parent is willing and able to provide a safe home
for the child if the court orders the removal of the child.
(d) Authorizes the court to render a temporary order without regard to
whether notice of the citation if the location of the parent or alleged
father is unknown.
(e) Requires the court to place a removed child with the child's
noncustodial parent or another relative of the child if placement with the
noncustodial parent is inappropriate, unless it is not in the child's best
interest.
(f) Requires the court to render a protective order if the court finds
that the child requires protection from family violence.
SECTION 35. Amends Section 263.101, Family Code, to require DPRS or other
agency appointed as a child's managing conservator to file a service plan
before the 46th day after the court renders a temporary order appointing
DPRS as temporary managing conservator.
SECTION 36. Amends Section 263.105(a), Family Code, to delete existing
text requiring the service plan to be filed with the next required status
report.
SECTION 37. Amends Section 263.201, Family Code, to provide that a status
hearing is not required if the court holds an initial permanency hearing
before the date a status hearing is required. Makes a conforming change.
SECTION 38. Amends Section 263.202, Family Code, by adding Subsection (d)
to require a court to consider whether to waive the service plan with
respect to a parent if it has not been filed with the court.
SECTION 39. Amends Section 263.306, Family Code, to require a court to
review a service plan, permanency report, and other information submitted
at a permanency hearing to determine the safety of a child, the continuing
necessity and appropriateness of the placement, the extent of compliance
with the case plan, and the extent of progress that has been made toward
alleviating or mitigating the causes necessitating the placement of the
child in foster care. Requires the court to review the information to
project a likely date by which the child may be returned to and safely
maintained in the child's home, placed for adoption, or placed in permanent
managing conservatorship. Makes a nonsubstantive change.
SECTION 40. Amends Section 263.402, Family Code, as follows:
Sec. 263.402. New title: MONITORED RETURN OF CHILD TO PARENT. Deletes
existing text authorizing a court to retain jurisdiction and not dismiss
the suit or render a final order if the court renders a temporary order
that orders DPRS to place a child with a relative of the child.
SECTION 41. Amends Section 264.201, Family Code, by adding Subsection (e)
to prohibit DPRS from providing and a court from ordering DPRS to provide
supervision for visitation in a child custody matter unless DPRS is a
petitioner or intervener in the underlying suit.
SECTION 42. Amends Section 154.053, Civil Practice and Remedies Code, by
adding Subsection (d) to provide that each participant, including an
impartial third party, to an alternative dispute resolution procedure is
subject to the requirements of Subchapter B, Chapter 261, Family Code, and
Subchapter C, Chapter 48, Human Resources Code (Department Investigation of
Reports of Suspected Abuse, Exploitation, or Neglect).
SECTION 43. Amends Section 154.073, Civil Practice and Remedies Code, to
provide that this section (Confidentiality of Communications in Dispute
Resolution Procedures) does not affect the duty to report abuse or neglect
under Subchapter B, Chapter 261, Family Code, and abuse, exploitation, or
neglect under Subchapter C, Chapter 48, Human Resources Code.
SECTION 44. Repealers: Sections 263.003 (Voluntary Placements; Suit) and
263.004 (When Child is at Home), Family Code.
SECTION 45. Effective date: September 1, 1999.
Makes application of this Act prospective.
SECTION 46. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute modifies the original in SECTION 12 by amending Section
162.304, Family Code, to delete proposed Subsection (f) which would have
authorized an adoption assistance agreement to provide for adoption subsidy
payments to continue after a child's 18th birthday if the child continues
to be eligible for the subsidy under federal law.
The substitute modifies the original in SECTION 34 by deleting proposed
Section 262.205, Family Code, and redesignating proposed Section 262.206 to
262.205. The original, now deleted, proposed Section 262.205 would have
authorized a party to a suit to cause a nonstenographic oral deposition to
be taken, transcribed, and used as provided by the Texas Rules of Civil
Procedure, notwithstanding Chapter 52, Government Code (Court Reporters).
It would have also authorized a nonstenographic oral deposition to be taken
before an officer authorized by law to take depositions.