HBA-SEB H.B. 1622 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 1622
By: Goodman
Juvenile Justice and Family Issues
7/26/1999
Enrolled


BACKGROUND AND PURPOSE 

Over the years, the Texas Legislature has modified the Family Code to
reflect changes in policy concerning lawsuits affecting the parent-child
relationship.  These changes affected the requirements for a person's
standing to file a suit for conservatorship of a child, the issuance of
temporary restraining orders and injunctions, and attorney ad litem fees
and requirements.  For example, at one time any person with an interest in
the child could file a suit for conservatorship, but now there are more
restrictions.  Some sections of the Family Code may need clarification due
to the many changes enacted during previous legislative sessions.  H.B.
1622 clarifies certain procedures regarding standing to file a suit for
conservatorship, temporary restraining orders and injunctions, attorney ad
litem fees and requirements, and circumstances under which the parent-child
relationship is terminated.    

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 45.002(b), Family Code, to provide that if a
child is at least 10, rather than 12, years of age, the child's written
consent to a change of name must be attached to the petition. 

SECTION 2.  Amends Section 102.003, Family Code, as follows:

Sec. 102.003.  GENERAL STANDING TO FILE SUIT.  (a)  Authorizes an original
suit affecting the parent-child relationship to be filed at any time by a
person, other than a foster parent, who has had actual care, control, and
possession of a child or a person with whom the child and the child's
guardian, managing conservator, or parent have resided.  Provides that in
order for one of those persons to file a suit, the child must have resided
with that person for at least six months ending not more than 90 days
preceding the date of the filing of the petition.  Authorizes a foster
parent of the child placed by the Department of Protective and Regulatory
Services (DPRS) to file suit if the child has lived in the foster parent's
home for at least 12, rather than 18, months ending not more than 90 days
preceding the date of the filing of the petition.  Makes conforming
changes. 

(b)  Prohibits the court from requiring that the time necessary for
standing under Subsection (a) is to be continuous and uninterrupted for the
purposes of computation. Requires the court to consider the child's
principal residence during the relevant time preceding the date of
commencing the suit.  

SECTION 3.  Amends Sections 105.001(b) and (d), Family Code, as follows:

(b)  Provides that a temporary restraining order or temporary injunction
granted under this section (Temporary Orders Before Final Order) need not
define the injury or state why it is irreparable, state why the order was
granted without notice, nor include an order setting the cause for trial on
the merits with respect to the ultimate relief requested.  Makes a
conforming change. 
 
(d)  Deletes existing text which authorizes a court to dispense with the
necessity of setting the cause for trial on the merits with respect to the
ultimate relief requested.  Makes conforming changes. 

SECTION 4.  Amends Section 107.0135, Family Code, to make a nonsubstantive
change. 

SECTION 5.  Amends Section 107.014(a), Family Code, to require an attorney
ad litem appointed under this subchapter to represent a child to become
familiar with the American Bar Association's standards of practice for
lawyers who represent children in abuse and neglect cases.  Makes a
conforming change. 

SECTION 6.  Amends Section 107.015, Family Code, as follows:

Sec. 107.015.  New title:  ATTORNEY AD LITEM FEES.   Prohibits a court from
awarding attorney ad litem fees against the state, a state agency, or a
political subdivision of the state. Provides an exception.  Makes
nonsubstantive changes. 

SECTION 7.  Amends Section 107.051(c), Family Code, to delete existing text
discussing whether DPRS has interest in a case in which an adoption is
requested or possession of or access to a child is an issue. 

SECTION 8.  Amends Section 108.001(c), Family Code, to provide that certain
records required to be maintained by the bureau of vital statistics
(bureau) are confidential, except as provided by law. Makes conforming
changes. 

SECTION 9.  Amends Section 108.003, Family Code, to make a conforming
change. 

SECTION 10.  Amends Section 108.005, Family Code, to require the bureau to
close the records concerning a child when the bureau receives a record from
the district clerk showing that continuing, exclusive jurisdiction of the
child has been lost due to the adoption of the child.  Deletes existing
text requiring the bureau to supply DPRS with certain information.  Makes
conforming and nonsubstantive changes.   

SECTION 11.  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 DPRS certain adoption information and other
information as necessary for DPRS to administer its duties.  Authorizes the
bureau to release otherwise confidential information to another
governmental entity that needs the information and maintains appropriate
safeguards to prevent further dissemination of the information. 

SECTION 12.  Amends Section 153.008, Family Code, to authorize a child who
is at least 10, rather than 12, year old to choose the child's managing
conservator. 

SECTION 13.  Amends Section 152.434, Family Code, to prohibit a grandparent
from requesting possession of or access to a child if each of the
biological parents of the grandchild has died or had parental rights
terminated or if the grandchild is the subject of a pending suit for
adoption.  Deletes existing text regarding certain affidavits.  Makes
conforming changes. 

SECTION 14.  Amends Section 155.204, Family Code, by amending Subsection
(a) and adding Subsection (f), as follows: 

(a)  Provides an exception to the statute that states that a motion to
transfer by a petitioner or movant is timely if it is made at the time the
initial pleadings are filed.     

(f)  Authorizes a party to file a transfer order with the clerk of the
court of continuing, exclusive jurisdiction, if the transfer order has been
rendered by a court exercising jurisdiction.  Requires the clerk of the
court of continuing, exclusive jurisdiction to transfer  the files on
receipt and without a hearing. 

SECTION 15.  Amends Section 156.006(b), Family Code, to make a conforming
change. 

SECTION 16.  Amends Section 156.101(b), Family Code, to make a conforming
change. 

SECTION 17.  Amends Section 156.301, Family Code, to authorize a court to
modify an order that sets the terms and conditions for possession of or
access to a child or that prescribes the relative rights, privileges,
duties, and powers of conservators if a conservator of the child has had a
significant history or alcohol or drug abuse since the date of the
rendition of the order. 

SECTION 18.  Amends Section 161.001, Family Code, to authorize a court to
order termination of the parent-child relationship if the court finds by
clear and convincing evidence that the parent has contumaciously refused to
submit to a reasonable and lawful order of a court under Subchapter D,
Chapter 261 (Investigation of Report of Child Abuse or Neglect), rather
than Chapter 264 (Child Welfare Services).  Authorizes the termination of
the parent-child relationship if the parent has been convicted or has been
placed on community supervision for the violation of Section 19.04, Penal
Code (Manslaughter), if the parent has continued to abuse a controlled
substance after completion of a court-ordered substance treatment program,
or if the parent has knowingly engaged in criminal conduct that has
resulted in the parent's conviction of an offense and confinement or
imprisonment and inability to care for the child for at least two years
from the date of filing the petition. Redesignates Subdivisions
(1)(L)(iv)-(xii) to (1)(L)(v)-(xiii).  Makes conforming and nonsubstantive
changes. 

SECTION 19.  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. 

SECTION 20.  Amends Section 162.008(b), Family Code, to prohibit a petition
for adoption from being granted until a certificate from the bureau, rather
than DPRS, acknowledging receipt of a certain report has been filed.  Makes
a conforming change. 

SECTION 21.  Amends Section 261.101(d), Family Code, to provide that a
person making a report has an option to waive the confidentiality of the
person's identity, in writing.  Makes conforming and nonsubstantive
changes. 

SECTION 22.  Amends Section 261.201, Family Code, by amending Subsections
(b) and (c) and adding Subsection (h), as follows: 

(b)  Authorizes a court to order the disclosure of confidential information
if, among other factors, the court determines that the disclosure is not
likely to endanger any person who provides care for the child. 

(c)  Makes a conforming change.

(h)  Establishes 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. 

SECTION 23.  Amends Section 261.301(b), Family Code, to require DPRS to
perform an investigation of a facility operated, licensed, certified,
registered, or listed by DPRS as provided by Subchapter E and the Human
Resources Code. 

SECTION 24.  Amends Section 261.303, Family Code, by amending Subsection
(c) and adding Subsection (d), as follows: 

(c)  Requires a court, for good cause, to order the release of a child's
prior medical, psychological, or psychiatric  records if a parent or person
responsible for a child's care does not consent to the release of the
records.  

 (d)  Requires a person, including a medical facility, than makes a certain
report to release to DPRS or designated agency records that directly relate
to suspected abuse or neglect without requiring parental consent or a court
order. 

SECTION 25.  Amends Sections 261.305(a)-(c), Family Code, to make
conforming changes. 

SECTION 26.  Reenacts Section 261.405, Family Code, as amended by Chapters
162 and 1374, Acts of the 75th Legislature, Regular Session, 1997. 

SECTION 27.  Amends Section 261.406(b), Family Code, to make nonsubstantive
changes. 

SECTION 28,  Amends the heading of Chapter 262, Family Code, to read as
follows: 

CHAPTER 262.  New title: PROCEDURES IN SUIT BY GOVERNMENTAL ENTITY TO
PROTECT HEALTH AND SAFETY OF CHILD   

SECTION 29.  Amends Section 262.001, Family Code, to authorize a
governmental entity with an interest in a child to file a suit affecting
the parent-child relationship requesting an order, rather than an emergency
order.  Establishes that the child's health and safety is the paramount
concern. 

SECTION 30.  Amends Section 262.002, Family Code, as follows:

Sec. 262.002.  New title:  JURISDICTION.  Makes a conforming change.

SECTION 31.  Amends Section 262.007(c), Family Code, to authorize DPRS to
retain possession of a child no longer than five, rather than 14, days.
Makes a conforming change. 

SECTION 32.  Amends the heading of Subchapter B, Chapter 262, Family Code,
to read as follows: 

SUBCHAPTER B.  New title:  TAKING POSSESSION OF CHILD

SECTION 33.  Amends Section 262.101, Family Code, to provide that an
original suit filed by a governmental entity that requires permission to
take possession of a child without prior notice and hearing must be
supported by an affidavit sworn to by a person with personal knowledge and
stating certain facts. 

SECTION 34.  Amends Section 262.102(a), Family Code, to provide that a
court must find that there is an immediate danger to a child or that the
child has been a victim of neglect or sexual abuse before the court may
issue a temporary restraining order or attachment of a child in a suit
brought by a governmental entity without prior notice and a hearing.   

SECTION 35.  Amends Section 262.106, Family Code, by adding Subsection (d),
to provide that a child is considered to have been taken into possession by
DPRS on the expiration of the five-day period, as appropriate, for the
purpose of determining the first working day after the date the child is
taken into possession. 

SECTION 36.  Amends Section 262.109(d), Family Code, to authorize a court
to waive written notice at the initial hearing for good cause. 

SECTION 37.  Amends Section 262.110, Family Code, to authorize DPRS to
retain possession of a child without a court order for not more than five
days until a parent or other person entitled to possession of the child
takes possession of the child.  Requires DPRS to take specific action on
the expiration of the fifth day if a parent or other person entitled to
possession does not take possession of the child.  
 
SECTION 38.  Amends Subchapter B, Chapter 262, Family Code, by adding
Section 262.113 to read 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 sworn to by a person with personal knowledge and stating 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 39.  Amends Section 262.201, Family Code, by adding Subsection (g)
provide that for the purpose of determining the 14th day after the date the
child is taken into possession, a child is considered to have been taken
into possession by DPRS on the expiration of the five-day period, as
appropriate.  

SECTION 40.  Amends Section 262.2015, Family Code, as follows:

Section 262.2015.  New title:  AGGRAVATED CIRCUMSTANCES.  Authorizes a
court to waive the service plan requirement to make reasonable efforts to
return a child to the parent and to accelerate the trial schedule 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.  Sets forth the conditions under which the court is
authorized to find that a parent has subjected the child to aggravated
circumstances.  Requires the court to conduct an initial permanency hearing
on finding that reasonable efforts have been made to prevent or eliminate
the need to remove the child or to make it possible for the child to return
safely to the child's home.  Authorizes separate notice of the permanency
plan to be given without notice of a hearing.  Requires DPRS to make
reasonable efforts to finalize the permanent placement of a child for whom
the court has made the finding.  Requires the court to set the suit for
trial on certain merits in order to facilitate final placement of the
child. 

SECTION 41.  Amends Section 262.203, Family Code, to require the court that
rendered the temporary order to transfer a suit, order transfer of the suit
from the court of continuing, exclusive jurisdiction, or order transfer of
the suit to the court having venue on the motion of a party or the court's
own motion, if applicable.  Authorizes a motion to transfer relating to a
suit to be filed separately from the petition.  Provides that the motion is
timely if filed while the case is pending.   
Provides that notwithstanding Sections 6.407 and 103.002, a court
exercising jurisdiction under this chapter is not required to transfer the
suit to a  court in which a parent has filed a suit for dissolution of
marriage before a final order for the protection of the child has been
rendered. 

 SECTION 42.  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, after the hearing, to grant the request to
remove the child from the parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian entitled to possession of
the child if the court finds sufficient evidence to 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.   

(c)  Requires the court, if it orders removal of the child from the child's
home, to issue an appropriate temporary order and to inform each parent in
open court that parental and custodial rights and duties may be subject to
restriction or termination unless the parent is willing and able to provide
a safe environment for the child.  

(d)  Authorizes the court to render a temporary order without regard to
whether notice of the citation has been published if citation by
publication is required for a parent or alleged or probable father in an
action because the location of the person is unknown. 
 
(e)  Requires the court to place a child who has been removed under this
section 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 best interest of the child. 
 
(f)  Requires the court to  render a protective order for the child if the
court finds that the child requires protection from family violence by a
member of the child's family or household.  

SECTION 43.  Amends Section 263.101, Family Code, to require DPRS or
another agency to file a service plan not later than the 45th day after the
court renders a temporary order appointing DPRS as temporary managing
conservator of a child. 

SECTION 44.  Amends Section 263.105(a), Family Code, to delete a
requirement of a next status report. 

SECTION 45.  Amends Section 263.201, Family Code, to establish 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 46.  Amends Section 263.202, Family Code, by adding Subsection (d)
to require the court to consider whether to waive the service plan if it
has not been filed with the court. 

SECTION 47.  Amends Section 263.306, Family Code, to require the court to
review the service plan, permanency report, and other information submitted
at a hearing to determine certain factors relevant to a child's placement
and 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 conforming change. 

SECTION 48.  Amends Section 263.402, Family Code, as follows:

Sec. 263.402.  New title:  MONITORED RETURN OF CHILD TO PARENT.  Deletes
existing text regarding the placement of a child with a relative. 

SECTION 49.  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 50.   Repealers:  Sections 263.003 (Voluntary Placements:  Suit)
and 263.004 (When a Child is at Home), Family Code.  

SECTION 51.  Effective date: September 1, 1999.
   Makes application of this Act prospective.

SECTION 52.  Emergency clause.