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.