Bill Text: TX HB567 | 2021-2022 | 87th Legislature | Introduced


Bill Title: 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.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2021-03-08 - Scheduled for public hearing on . . . [HB567 Detail]

Download: Texas-2021-HB567-Introduced.html
  87R1785 MCK-D
 
  By: Frank H.B. No. 567
 
 
 
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.
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