Bill Text: TX SB1245 | 2013-2014 | 83rd Legislature | Introduced
Bill Title: Relating to child custody evaluations and adoption evaluations conducted and testimony provided in certain suits affecting the parent-child relationship; providing penalties; authorizing fees.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-03-13 - Referred to Jurisprudence [SB1245 Detail]
Download: Texas-2013-SB1245-Introduced.html
83R2566 EES-F | ||
By: West | S.B. No. 1245 |
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relating to child custody evaluations and adoption evaluations | ||
conducted and testimony provided in certain suits affecting the | ||
parent-child relationship; providing penalties; authorizing fees. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
ARTICLE 1. CHILD CUSTODY EVALUATION | ||
SECTION 1.01. Chapter 107, Family Code, is amended by | ||
adding Subchapter E to read as follows: | ||
SUBCHAPTER E. CHILD CUSTODY EVALUATION | ||
Sec. 107.101. DEFINITIONS. (a) In this subchapter: | ||
(1) "Child custody evaluation" means an evaluative | ||
process ordered by a court in a suit through which information, | ||
opinions, recommendations, and answers to specific questions asked | ||
by the court are: | ||
(A) made regarding: | ||
(i) the conservatorship of a child, | ||
including the terms and conditions of the conservatorship; | ||
(ii) the possession of or access to a child, | ||
including the terms and conditions of possession or access; | ||
(iii) recommendations for therapeutic | ||
services; or | ||
(iv) any other issue affecting the best | ||
interest of a child; and | ||
(B) provided to: | ||
(i) the court; | ||
(ii) the parties to the suit; | ||
(iii) the parties' attorneys; and | ||
(iv) any other person appointed under this | ||
chapter by the court in the suit. | ||
(2) "Child custody evaluator" means a person who | ||
conducts a child custody evaluation under this subchapter. The term | ||
includes a private child custody evaluator. | ||
(3) "Department" means the Department of Family and | ||
Protective Services. | ||
(4) "Private child custody evaluator" means a person | ||
conducting a child custody evaluation who is not conducting the | ||
evaluation as an employee of or contractor with a domestic | ||
relations office. | ||
(5) "Supervision" means the regular review of and | ||
consultation with a person. Supervision does not require the | ||
constant physical presence of the person providing supervision. | ||
(b) For purposes of this subchapter, a child custody | ||
evaluation does not include services provided in accordance with | ||
the Interstate Compact on the Placement of Children adopted under | ||
Subchapter B, Chapter 162, or an evaluation conducted in accordance | ||
with Section 262.114 by an employee of or contractor with the | ||
department. | ||
Sec. 107.102. ORDER FOR CHILD CUSTODY EVALUATION. (a) The | ||
court may order in a suit the preparation of a child custody | ||
evaluation concerning: | ||
(1) a child who is at issue in the suit; | ||
(2) a party to the suit; | ||
(3) the home of any person requesting conservatorship | ||
of, possession of, or access to a child who is at issue in the suit; | ||
or | ||
(4) any issue or question relating to the suit and | ||
requested by the court or agreed to by the parties to the suit | ||
before or during the evaluation process. | ||
(b) An order for a child custody evaluation must include: | ||
(1) the name of each person who will conduct the | ||
evaluation; | ||
(2) the purpose of the evaluation; and | ||
(3) the specific issues or questions to be addressed | ||
in the evaluation. | ||
(c) Except as provided by Section 107.105, each person who | ||
conducts a child custody evaluation must be qualified under Section | ||
107.104. | ||
(d) The department may not conduct a child custody | ||
evaluation. | ||
Sec. 107.103. REQUIREMENTS OF CHILD CUSTODY EVALUATION. | ||
(a) A child custody evaluator shall: | ||
(1) review relevant information obtained from | ||
collateral sources; | ||
(2) review relevant school records; | ||
(3) review relevant physical and mental health records | ||
of each party to the suit and each child who is at issue in the suit; | ||
(4) review relevant records of the department, | ||
including those maintained as part of the central registry | ||
established under Section 261.002, and law enforcement agencies | ||
relating to each child who is at issue in the suit, each party to the | ||
suit, and each person who lives with a party to the suit; | ||
(5) interview each adult living in the home that is the | ||
subject of the evaluation, if applicable; | ||
(6) interview, in a developmentally appropriate | ||
manner, each child who is at issue in the suit and who is at least | ||
four years old; | ||
(7) observe each child who is at issue in the suit, | ||
regardless of the age of the child; | ||
(8) observe each party to the suit with each child at | ||
issue in the suit, including, as appropriate, during supervised | ||
visitation, unless contact between a party and a child is | ||
prohibited by court order or the person conducting the evaluation | ||
has good cause for not making the observation and states the good | ||
cause in writing provided to the parties to the suit before the | ||
completion of the evaluation; | ||
(9) assess the relationship between each child at | ||
issue in the suit and each party seeking possession of or access to | ||
the child, if applicable; and | ||
(10) complete any other tasks ordered by the court or | ||
agreed to by the parties. | ||
(b) In addition to the requirements of a child custody | ||
evaluation in Subsection (a), a court issuing an order for an | ||
evaluation may order the child custody evaluator to: | ||
(1) visit the home of a party to the suit; | ||
(2) conduct a joint interview of the parties to the | ||
suit; | ||
(3) observe a child who is at issue in the suit with | ||
each adult who lives in the home that is the subject of the | ||
evaluation; | ||
(4) interview or observe a child who is not at issue in | ||
the suit but who lives on a full-time or part-time basis in the home | ||
that is the subject of the evaluation; | ||
(5) conduct valid and reliable psychological testing; | ||
or | ||
(6) review any other information that the court | ||
determines is relevant. | ||
Sec. 107.104. CHILD CUSTODY EVALUATOR: MINIMUM | ||
QUALIFICATIONS. (a) In this section: | ||
(1) "Full-time experience" means a period during which | ||
a person works at least 30 hours per week. | ||
(2) "Human services field of study" means a field of | ||
study designed to prepare a person in the disciplined application | ||
of counseling, family therapy, psychology, or social work values, | ||
principles, and methods. | ||
(b) To be qualified to conduct a child custody evaluation, a | ||
person must: | ||
(1) have at least a master's degree from an accredited | ||
college or university in a human services field of study and a | ||
license to practice in this state as a social worker, professional | ||
counselor, marriage and family therapist, or psychologist and: | ||
(A) after completing the degree required under | ||
this subdivision, have two years of full-time experience or | ||
equivalent part-time experience under professional supervision | ||
during which the person performed functions involving the | ||
evaluation of physical, intellectual, social, and psychological | ||
functioning and needs and the potential of the social and physical | ||
environment, both present and prospective, to meet those needs; and | ||
(B) after obtaining the license required under | ||
this subdivision, have participated in the performance of at least | ||
10 court-ordered child custody evaluations under the supervision of | ||
a person qualified under this section; | ||
(2) have graduated medical school and be licensed to | ||
practice medicine in this state and board certified in psychiatry | ||
and: | ||
(A) after completing medical school, have two | ||
years of full-time experience or equivalent part-time experience | ||
under professional supervision during which the person performed | ||
functions involving the evaluation of physical, intellectual, | ||
social, and psychological functioning and needs and the potential | ||
of the social and physical environment, both present and | ||
prospective, to meet those needs; and | ||
(B) after obtaining the license and | ||
certification required under this subdivision, have participated | ||
in the performance of at least 10 court-ordered child custody | ||
evaluations under the supervision of a person qualified under this | ||
section; | ||
(3) meet the requirements of Subdivision (1)(A) or | ||
(2)(A) and be practicing under the direct supervision of a person | ||
qualified under this section to complete at least 10 court-ordered | ||
child custody evaluations under supervision; or | ||
(4) be employed by or under contract with a domestic | ||
relations office, provided that the person conducts child custody | ||
evaluations relating only to families ordered to participate in | ||
child custody evaluations conducted by that office. | ||
(c) In addition to the other qualifications prescribed by | ||
this section, a person must complete at least eight hours of family | ||
violence dynamics training provided by a family violence service | ||
provider to be qualified to conduct a child custody evaluation. | ||
(d) In addition to the other qualifications prescribed by | ||
this section, a person who conducts a child custody evaluation as an | ||
employee of or contractor with a domestic relations office must | ||
meet any qualifications required by that office. | ||
Sec. 107.105. EXCEPTION TO QUALIFICATIONS REQUIRED TO | ||
CONDUCT CHILD CUSTODY EVALUATION. In a county with a population of | ||
less than 500,000, if a court finds that a qualified person is not | ||
available to conduct a child custody evaluation in a timely manner, | ||
the court may authorize a person the court determines to be | ||
otherwise qualified to conduct the evaluation if the parties to the | ||
suit agree to the appointment in writing. | ||
Sec. 107.106. PRIVATE CHILD CUSTODY EVALUATOR: SPECIALIZED | ||
KNOWLEDGE. A private child custody evaluator must demonstrate to | ||
the court that the evaluator has sufficient specialized knowledge, | ||
education, and training to conduct a child custody evaluation. In | ||
making that demonstration, the evaluator must demonstrate that the | ||
evaluator has completed at least 40 hours of education and training | ||
on the following topics: | ||
(1) the psychological and developmental needs of a | ||
child, specifically as those needs relate to decisions about | ||
conservatorship of, possession of, and access to the child; | ||
(2) family dynamics, including parent-child | ||
relationships, blended families, and extended family | ||
relationships; | ||
(3) the effects of divorce, domestic violence, abuse | ||
and neglect, substance abuse, and parental conflict on the | ||
psychological and developmental needs of a child; | ||
(4) interviewing and assessing adults, children, and | ||
infants; | ||
(5) gathering information from collateral sources; | ||
(6) collecting and assessing data; | ||
(7) recognizing the limits of the reliability and | ||
validity of data; | ||
(8) addressing issues relating to mental health, | ||
medication use, and physical and learning disabilities; | ||
(9) applying to all parties comparable interview, | ||
assessment, and testing procedures that meet generally accepted | ||
clinical, diagnostic, forensic, scientific, and professional | ||
standards; | ||
(10) consulting with additional experts as needed; | ||
(11) assessing parenting capacity and constructing | ||
effective parenting plans; | ||
(12) ethical standards relating to a child custody | ||
evaluator's professional license and other applicable professional | ||
guidelines; | ||
(13) the legal standards and processes applicable in a | ||
suit; | ||
(14) understanding the distinctions in the roles of | ||
evaluator, mediator, therapist, consulting expert, testifying | ||
expert, parenting coordinator, and parenting facilitator; | ||
(15) writing reports and making recommendations; | ||
(16) mandatory reporting requirements and limitations | ||
on confidentiality; | ||
(17) preparing for and testifying at a court | ||
proceeding; | ||
(18) maintaining professional neutrality and | ||
objectivity when conducting a child custody evaluation; and | ||
(19) the importance of assessing the health, safety, | ||
welfare, and best interest of a child. | ||
Sec. 107.107. CHILD CUSTODY EVALUATOR: CONFLICTS OF | ||
INTEREST AND BIAS. (a) Before accepting appointment as a child | ||
custody evaluator in a suit, a person must disclose to the court, | ||
each attorney for a party to the suit, any attorney for a child who | ||
is at issue in the suit, and any party to the suit who does not have | ||
an attorney: | ||
(1) any conflict of interest that the person believes | ||
that the person has with a party to the suit or a child who is at | ||
issue in the suit; | ||
(2) any previous knowledge that the person has of a | ||
party to the suit or a child who is at issue in the suit; | ||
(3) any pecuniary relationship that the person | ||
believes that the person has with an attorney in the suit; | ||
(4) any relationship of confidence or trust that the | ||
person believes that the person has with an attorney in the suit; | ||
and | ||
(5) any other information relating to the person's | ||
relationship with an attorney in the suit that a reasonable, | ||
prudent person would believe would affect the ability of the person | ||
to act impartially in conducting a child custody evaluation. | ||
(b) The court may not appoint a person as a child custody | ||
evaluator in a suit if the person makes any of the disclosures in | ||
Subsection (a) unless: | ||
(1) the court finds that: | ||
(A) the person has no conflict of interest with a | ||
party to the suit or a child who is at issue in the suit; | ||
(B) the person's previous knowledge of a party to | ||
the suit or a child who is at issue in the suit is not relevant; | ||
(C) the person does not have a pecuniary | ||
relationship with an attorney in the suit; and | ||
(D) the person does not have a relationship of | ||
trust or confidence with an attorney in the suit; or | ||
(2) the parties and any attorney for a child who is at | ||
issue in the suit agree in writing to the person's appointment as | ||
the child custody evaluator. | ||
(c) After being appointed as a child custody evaluator in a | ||
suit, a person shall immediately disclose to the court, each | ||
attorney for a party to the suit, any attorney for a child who is at | ||
issue in the suit, and any party to the suit who does not have an | ||
attorney any discovery of: | ||
(1) a conflict of interest that the person believes | ||
that the person has with a party to the suit or a child who is at | ||
issue in the suit; and | ||
(2) previous knowledge that the person has of a party | ||
to the suit or a child who is at issue in the suit. | ||
(d) An person shall resign from the person's appointment as | ||
a child custody evaluator in a suit if the person makes any of the | ||
disclosures in Subsection (c) unless: | ||
(1) the court finds that: | ||
(A) the person has no conflict of interest with a | ||
party to the suit or a child who is at issue in the suit; and | ||
(B) the person's previous knowledge of a party to | ||
the suit or a child who is at issue in the suit is not relevant; or | ||
(2) the parties and any attorney for a child who is at | ||
issue in the suit agree in writing to the person's continued | ||
appointment as the child custody evaluator. | ||
(e) A person may not be appointed as a child custody | ||
evaluator in a suit if the person has worked in a professional | ||
capacity with a party to the suit, a child who is at issue in the | ||
suit, or a member of the party's or child's family who is involved in | ||
the suit. This subsection does not apply to a person who has worked | ||
in a professional capacity with a party, a child, or a member of the | ||
party's or child's family only as a teacher of parenting skills in a | ||
group setting. For purposes of this subsection, "family" has the | ||
meaning assigned by Section 71.003. | ||
Sec. 107.108. COMMUNICATIONS AND RECORDKEEPING OF CHILD | ||
CUSTODY EVALUATOR. (a) Notwithstanding any rule, standard of | ||
care, or privilege applicable to the professional license held by a | ||
child custody evaluator, a communication made by a participant in a | ||
child custody evaluation is subject to disclosure and may be | ||
offered in any judicial or administrative proceeding, if otherwise | ||
admissible under the rules of evidence. | ||
(b) A child custody evaluator shall keep a detailed record | ||
regarding interviews that the evaluator conducts, observations | ||
that the evaluator makes, and substantive interactions that the | ||
evaluator has as part of a child custody evaluation. | ||
(c) Except for information the disclosure of which is | ||
governed by Section 261.201(f-2) or the disclosure of which is | ||
prohibited by a court order, a private child custody evaluator | ||
shall, after completion of an evaluation, make available in a | ||
reasonable time the evaluator's records relating to the evaluation | ||
on the written request of an attorney for a party, a party who does | ||
not have an attorney, or any other person appointed by the court | ||
under this chapter in the suit in which the evaluator conducted the | ||
evaluation. | ||
(d) Except for information the disclosure of which is | ||
governed by Section 261.201(f-2), a child custody evaluator who | ||
conducted a child custody evaluation as an employee of or | ||
contractor with a domestic relations office shall, after completion | ||
of the evaluation, make available the evaluator's records to the | ||
persons described in Subsection (c) on written request according to | ||
the rules and policies of the office. | ||
(e) A person maintaining records subject to disclosure | ||
under this section may charge a reasonable fee for producing copies | ||
of the records. | ||
(f) A private child custody evaluator shall retain records | ||
relating to a child custody evaluation conducted by the evaluator | ||
until the later of the seventh anniversary of the date the evaluator | ||
filed the evaluator's report on the evaluation with the court or the | ||
ending date of the retention period established by the licensing | ||
authority that issues the professional license held by the | ||
evaluator. | ||
(g) A domestic relations office shall retain records | ||
relating to a child custody evaluation conducted by a child custody | ||
evaluator acting as an employee of or contractor with the office for | ||
the retention period established by the office. | ||
Sec. 107.109. CHILD CUSTODY EVALUATION REPORT REQUIRED. | ||
(a) For each child custody evaluation, the child custody evaluator | ||
who conducted the evaluation shall prepare a report containing the | ||
evaluator's findings, opinions, recommendations, and answers to | ||
specific questions asked by the court relating to the evaluation. | ||
(b) A report prepared under this section must include the | ||
name, license number, and basis for qualification of each child | ||
custody evaluator who conducted any portion of the evaluation. | ||
Sec. 107.110. GENERAL PROVISIONS APPLICABLE TO CONDUCT OF | ||
CHILD CUSTODY EVALUATOR AND PREPARATION OF REPORT. (a) Unless | ||
otherwise directed by a court or prescribed by this subchapter, a | ||
child custody evaluator's actions in conducting a child custody | ||
evaluation must be in conformance with the professional standard of | ||
care applicable to the evaluator's licensure and any administrative | ||
rules, ethical standards, or guidelines adopted by the licensing | ||
authority that licenses the evaluator. | ||
(b) In addition to the requirements prescribed by this | ||
subchapter, a court may impose requirements or adopt local rules | ||
applicable to a child custody evaluation or a child custody | ||
evaluator. | ||
(c) A child custody evaluator shall follow evidence-based | ||
practice methods and make use of current best evidence in making | ||
assessments and recommendations. | ||
(d) A child custody evaluator shall disclose to each | ||
attorney of record any communication regarding a substantive issue | ||
between the evaluator and an attorney of record representing a | ||
party in a disputed suit. This subsection does not apply to a | ||
communication between a child custody evaluator and an amicus | ||
attorney. | ||
(e) To the extent possible, a child custody evaluator shall | ||
conduct interviews and make observations in a balanced manner so | ||
that if the evaluator interviews and observes a child at issue in | ||
the suit while in the care of one party to the suit, the evaluator | ||
also interviews and observes the child while in the care of the | ||
other parties to the suit. | ||
(f) To the extent possible, a child custody evaluator shall | ||
verify each statement of fact pertinent to a child custody | ||
evaluation and shall note the sources of verification and | ||
information in the child custody evaluation report prepared under | ||
Section 107.109. | ||
(g) A child custody evaluator shall state the basis for and | ||
the sources of the evaluator's conclusions or recommendations in | ||
the child custody evaluation report prepared under Section 107.109. | ||
(h) A child custody evaluation must be conducted in | ||
compliance with this subchapter, regardless of whether the | ||
evaluation is conducted by a single child custody evaluator or | ||
multiple evaluators working separately or together. | ||
Sec. 107.111. INTRODUCTION AND PROVISION OF CHILD CUSTODY | ||
EVALUATION REPORT. (a) Disclosure to the court or jury of the | ||
contents of a child custody evaluation report prepared under | ||
Section 107.109 is subject to the rules of evidence. | ||
(b) Unless the court has issued an order restricting | ||
disclosure, a private child custody evaluator shall provide to the | ||
attorneys of the parties to a suit, any party who does not have an | ||
attorney, and any other person appointed by the court under this | ||
chapter in the suit a copy of the child custody evaluation report | ||
before the earlier of: | ||
(1) the seventh day after the date the child custody | ||
report is completed; or | ||
(2) the 30th day before the date of the commencement of | ||
the trial, if applicable. | ||
(c) A child custody evaluator who conducts a child custody | ||
evaluation as an employee of or contractor with a domestic | ||
relations office shall provide to the attorneys of the parties to a | ||
suit and any other person appointed by the court in the suit under | ||
this chapter a copy of the child custody evaluation report in the | ||
manner provided by Subsection (b). The evaluator shall provide a | ||
copy of the report to a party to the suit as provided by the rules | ||
and policies of the office or by a court order. | ||
(d) A trial in a suit in which a child custody evaluation is | ||
conducted may not begin before the 30th day after the date the child | ||
custody evaluator provides copies of the child custody evaluation | ||
report as provided by this section unless the parties to the suit | ||
agree to an earlier date. | ||
Sec. 107.112. CHILD CUSTODY EVALUATION FEE. If the court | ||
orders a child custody evaluation to be conducted, the court shall | ||
award the child custody evaluator a reasonable fee for the | ||
performance of the evaluation that shall be imposed in the form of a | ||
money judgment and paid directly to the evaluator. The evaluator | ||
may enforce the judgment for the fee by any means available under | ||
law for civil judgments. | ||
Sec. 107.113. ACCESS TO RECORDS; OFFENSE. (a) A child | ||
custody evaluator is entitled to obtain from the department any | ||
report, record, working paper, or other information in the | ||
possession, custody, or control of the department, including | ||
information that is confidential under Section 40.005, Human | ||
Resources Code, or other law, that pertains to an individual who is | ||
a subject of the evaluation. | ||
(b) Any confidential information obtained by a child | ||
custody evaluator under this section remains confidential, subject | ||
to Subsection (c), and is not subject to disclosure under Chapter | ||
552, Government Code, or to subpoena or discovery. | ||
(c) A child custody evaluator may disclose confidential | ||
information obtained under this section in a child custody | ||
evaluation report prepared under Section 107.109 only to the extent | ||
that the evaluator determines that the information is relevant to | ||
the evaluator's recommendations in the report. | ||
(d) Except as provided by Subsection (c) or by an order of | ||
the court that appointed the child custody evaluator, a child | ||
custody evaluator commits an offense if the evaluator releases or | ||
discloses confidential information obtained from the department | ||
under this section. An offense under this section is a Class A | ||
misdemeanor. | ||
ARTICLE 2. ADOPTION EVALUATION | ||
SECTION 2.01. Chapter 107, Family Code, is amended by | ||
adding Subchapter F to read as follows: | ||
SUBCHAPTER F. ADOPTION EVALUATION | ||
Sec. 107.151. DEFINITIONS. In this subchapter: | ||
(1) "Adoption evaluation" means a pre-placement or | ||
post-placement evaluative process through which information and | ||
recommendations regarding adoption of a child may be made to the | ||
court, the parties, and the parties' attorneys. The term does not | ||
include services provided in accordance with the Interstate Compact | ||
on the Placement of Children adopted under Subchapter B, Chapter | ||
162, or an evaluation conducted in accordance with Section 262.114 | ||
by an employee of or contractor with the department. | ||
(2) "Adoption evaluator" means a person who conducts | ||
an adoption evaluation under this subchapter. | ||
(3) "Department" means the Department of Family and | ||
Protective Services. | ||
(4) "Supervision" means the regular review of and | ||
consultation with a person. Supervision does not require the | ||
constant physical presence of the person providing supervision. | ||
Sec. 107.152. ORDER FOR ADOPTION EVALUATION. (a) The court | ||
shall order the performance of an adoption evaluation to evaluate | ||
each party who requests termination of the parent-child | ||
relationship or an adoption in a suit for: | ||
(1) termination of the parent-child relationship in | ||
which a person other than a parent may be appointed managing | ||
conservator of a child; or | ||
(2) an adoption. | ||
(b) The adoption evaluation required under Subsection (a) | ||
must include an evaluation of the circumstances and the condition | ||
of the home and social environment of any person requesting to adopt | ||
a child who is at issue in the suit. | ||
(c) If the department is not a party to the suit, the court | ||
may appoint a qualified individual, a qualified private entity, or | ||
a domestic relations office to conduct the adoption evaluation. If | ||
the department is a party to the suit, the court may also appoint a | ||
state agency, including the department, to conduct the adoption | ||
evaluation. | ||
(d) Except as provided by Section 107.156, a person who | ||
conducts an adoption evaluation must be qualified under Section | ||
107.155. | ||
Sec. 107.153. REQUIREMENTS FOR PRE-PLACEMENT PART OF | ||
ADOPTION EVALUATION. (a) This section does not apply to the | ||
pre-placement part of an adoption evaluation conducted by a | ||
licensed child-placing agency or the department. The pre-placement | ||
part of an adoption evaluation conducted by a licensed | ||
child-placing agency or the department is governed by rules adopted | ||
by the executive commissioner of the Health and Human Services | ||
Commission, including rules adopted under Chapter 42, Human | ||
Resources Code. | ||
(b) Except as provided by Subsection (f), a person who | ||
conducts an adoption evaluation must file with the court a report | ||
containing the person's findings and conclusions made before a | ||
child who is at issue in the suit to which the subject of the | ||
evaluation is a party begins residence in a prospective adoptive | ||
home. | ||
(c) The report required under Subsection (b) must be filed | ||
with the court before the court renders a final order for | ||
termination of the parent-child relationship. | ||
(d) The costs of the pre-placement part of an adoption | ||
evaluation in a suit for adoption must be paid by the prospective | ||
adoptive parent. | ||
(e) Unless otherwise agreed to by the court, the | ||
pre-placement part of an adoption evaluation must comply with the | ||
minimum requirements for the pre-placement part of an adoption | ||
evaluation under rules adopted by the executive commissioner of the | ||
Health and Human Services Commission. | ||
(f) In a suit filed after a child who is at issue in the suit | ||
begins residence in a prospective adoptive home, the report | ||
required under this section and the report required under Section | ||
107.154 may be combined in a single report. | ||
Sec. 107.154. REQUIREMENTS FOR POST-PLACEMENT PART OF | ||
ADOPTION EVALUATION. (a) An adoption evaluator shall file with the | ||
court a report containing the person's findings and conclusions | ||
made after a child who is at issue in the suit to which the subject | ||
of the evaluation is a party begins residence in a prospective | ||
adoptive home. | ||
(b) The report required under Subsection (a) must be filed | ||
with the court before the court renders a final order of adoption. | ||
(c) Unless otherwise agreed to by the court, the | ||
post-placement part of an adoption evaluation must comply with the | ||
minimum requirements for the post-placement part of an adoption | ||
evaluation under rules adopted by the executive commissioner of the | ||
Health and Human Services Commission. | ||
Sec. 107.155. ADOPTION EVALUATOR: MINIMUM QUALIFICATIONS. | ||
(a) In this section: | ||
(1) "Full-time experience" means a period during which | ||
a person works at least 30 hours per week. | ||
(2) "Human services field of study" means a field of | ||
study designed to prepare a person in the disciplined application | ||
of counseling, family therapy, psychology, or social work values, | ||
principles, and methods. | ||
(b) To be qualified to conduct an adoption evaluation, a | ||
person must: | ||
(1) have a degree from an accredited college or | ||
university in a human services field of study and a license to | ||
practice in this state as a social worker, professional counselor, | ||
marriage and family therapist, or psychologist and: | ||
(A) be qualified as a child custody evaluator | ||
under Section 107.104; | ||
(B) have one year of full-time experience working | ||
at a child-placing agency conducting child-placing activities; or | ||
(C) be practicing under the direct supervision of | ||
a person qualified under this section to conduct adoption | ||
evaluations; or | ||
(2) be employed by a domestic relations office, | ||
provided that the person conducts adoption evaluations relating | ||
only to families ordered to participate in adoption evaluations | ||
conducted by the office. | ||
(c) In addition to the other qualifications prescribed by | ||
this section, a person must complete at least eight hours of family | ||
violence dynamics training provided by a family violence service | ||
provider to be qualified to conduct an adoption evaluation. | ||
Sec. 107.156. EXCEPTION TO QUALIFICATIONS REQUIRED TO | ||
CONDUCT ADOPTION EVALUATION. If a court finds that a qualified | ||
person is not available to conduct an adoption evaluation in the | ||
county in which the court presides, the court may authorize a person | ||
the court determines to be otherwise qualified to conduct the | ||
evaluation. | ||
Sec. 107.157. ADOPTION EVALUATOR: CONFLICTS OF INTEREST AND | ||
BIAS. (a) Before accepting appointment as an adoption evaluator in | ||
a suit, a person must disclose to the court, each attorney for a | ||
party to the suit, any attorney for a child who is at issue in the | ||
suit, and any party to the suit who does not have an attorney: | ||
(1) any conflict of interest that the person believes | ||
that the person has with a party to the suit or a child who is at | ||
issue in the suit; | ||
(2) any previous knowledge that the person has of a | ||
party to the suit or a child who is at issue in the suit; | ||
(3) any pecuniary relationship that the person | ||
believes that the person has with an attorney in the suit; | ||
(4) any relationship of confidence or trust that the | ||
person believes that the person has with an attorney in the suit; | ||
and | ||
(5) any other information relating to the person's | ||
relationship with an attorney in the suit that a reasonable, | ||
prudent person would believe would affect the ability of the person | ||
to act impartially in conducting an adoption evaluation. | ||
(b) The court may not appoint a person as an adoption | ||
evaluator in a suit if the person makes any of the disclosures in | ||
Subsection (a) unless: | ||
(1) the court finds that: | ||
(A) the person has no conflict of interest with a | ||
party to the suit or a child who is at issue in the suit; | ||
(B) the person's previous knowledge of a party to | ||
the suit or a child who is at issue in the suit is not relevant; | ||
(C) the person does not have a pecuniary | ||
relationship with an attorney in the suit; and | ||
(D) the person does not have a relationship of | ||
trust or confidence with an attorney in the suit; or | ||
(2) the parties and any attorney for a child who is at | ||
issue in the suit agree in writing to the person's appointment as | ||
the adoption evaluator. | ||
(c) After being appointed as an adoption evaluator in a | ||
suit, a person shall immediately disclose to the court, each | ||
attorney for a party to the suit, any attorney for a child who is at | ||
issue in the suit, and any party to the suit who does not have an | ||
attorney any discovery of: | ||
(1) a conflict of interest that the person believes | ||
that the person has with a party to the suit or a child who is at | ||
issue in the suit; and | ||
(2) previous knowledge that the person has of a party | ||
to the suit or a child who is at issue in the suit. | ||
(d) A person shall resign from the person's appointment as | ||
an adoption evaluator in a suit if the person makes any of the | ||
disclosures in Subsection (c) unless: | ||
(1) the court finds that: | ||
(A) the person has no conflict of interest with a | ||
party to the suit or a child who is at issue in the suit; and | ||
(B) the person's previous knowledge of a party to | ||
the suit or a child who is at issue in the suit is not relevant; or | ||
(2) the parties and any attorney for a child who is at | ||
issue in the suit agree in writing to the person's continued | ||
appointment as the adoption evaluator. | ||
(e) A person may not be appointed as an adoption evaluator | ||
in a suit if the person has worked in a professional capacity with a | ||
party to the suit, a child who is at issue in the suit, or a member | ||
of the party's or child's family who is involved in the suit. This | ||
subsection does not apply to a person who has worked in a | ||
professional capacity with a party, a child, or a member of the | ||
party's or child's family only as a teacher of parenting skills in a | ||
group setting. For purposes of this subsection, family has the | ||
meaning assigned by Section 71.003. | ||
Sec. 107.158. GENERAL PROVISIONS APPLICABLE TO CONDUCT OF | ||
ADOPTION EVALUATOR AND PREPARATION OF REPORTS. (a) Unless | ||
otherwise directed by a court or prescribed by this subchapter, an | ||
adoption evaluator's actions in conducting an adoption evaluation | ||
must be in conformance with the professional standard of care | ||
applicable to the evaluator's licensure and any administrative | ||
rules, ethical standards, or guidelines adopted by the licensing | ||
authority that licenses the evaluator. | ||
(b) In addition to the requirements prescribed by this | ||
subchapter, a court may impose requirements or adopt local rules | ||
applicable to an adoption evaluation or an adoption evaluator. | ||
(c) An adoption evaluator shall follow evidence-based | ||
practice methods and make use of current best evidence in making | ||
assessments and recommendations. | ||
(d) An adoption evaluator shall disclose to each attorney of | ||
record any communication regarding a substantive issue between the | ||
evaluator and an attorney of record representing a party in a | ||
disputed suit. This subsection does not apply to a communication | ||
between an adoption evaluator and an amicus attorney. | ||
(e) To the extent possible, an adoption evaluator shall | ||
verify each statement of fact pertinent to an adoption evaluation | ||
and shall note the sources of verification and information in any | ||
report prepared on the evaluation. | ||
(f) An adoption evaluator shall state the basis for the | ||
evaluator's conclusions or recommendations in any report prepared | ||
on the evaluation. | ||
(g) Any report prepared on an adoption evaluation must | ||
include the name, license number, and basis for qualification of | ||
each adoption evaluator who conducted any portion of the | ||
evaluation. | ||
Sec. 107.159. REPORTING CERTAIN PLACEMENTS FOR ADOPTION. | ||
An adoption evaluator shall report to the department any adoptive | ||
placement that appears to have been made by someone other than a | ||
licensed child-placing agency or a child's parent or managing | ||
conservator. | ||
Sec. 107.160. ADOPTION EVALUATION REPORT REQUIRED. An | ||
adoption evaluator shall file with the court on a date set by the | ||
court a report containing the evaluator's findings and conclusions | ||
relating to the evaluation. The report shall be made a part of the | ||
record of the suit. | ||
Sec. 107.161. PROSPECTIVE ADOPTIVE PARENTS ENTITLED TO | ||
RECEIVE COPY OF ADOPTION EVALUATION REPORT. In a suit for adoption, | ||
a copy of the report prepared under Section 107.160 must be made | ||
available to the prospective adoptive parents before the court | ||
renders a final order of adoption. | ||
Sec. 107.162. INTRODUCTION AND PROVISION OF ADOPTION | ||
EVALUATION REPORT AND TESTIMONY RELATING TO ADOPTION EVALUATION. | ||
(a) Disclosure to the jury of the contents of an adoption | ||
evaluation report prepared under Section 107.160 is subject to the | ||
rules of evidence. | ||
(b) An adoption evaluator shall provide to the attorneys of | ||
the parties to a suit and any other person appointed by the court | ||
under this chapter in the suit a copy of the report prepared under | ||
Section 107.160 before the earlier of: | ||
(1) the seventh day after the date the adoption | ||
evaluation report is completed; or | ||
(2) the 30th day before the date of the commencement of | ||
the trial, if applicable. | ||
(c) The court may compel the attendance of witnesses | ||
necessary for the proper disposition of a suit, including a | ||
representative of an agency that conducts an adoption evaluation, | ||
who may be compelled to testify. | ||
Sec. 107.163. ADOPTION EVALUATION FEE. If the court orders | ||
an adoption evaluation to be conducted, the court shall award the | ||
adoption evaluator a reasonable fee for the performance of the | ||
evaluation that shall be imposed in the form of a money judgment and | ||
paid directly to the evaluator. The evaluator may enforce the | ||
judgment for the fee by any means available under law for civil | ||
judgments. | ||
Sec. 107.164. ACCESS TO RECORDS; OFFENSE. (a) An adoption | ||
evaluator is entitled to obtain from the department any report, | ||
record, working paper, or other information in the possession, | ||
custody, or control of the department, including information that | ||
is confidential under Section 40.005, Human Resources Code, or | ||
other law, that pertains to a person who is a subject of the | ||
evaluation. | ||
(b) Any confidential information obtained by an adoption | ||
evaluator under this section remains confidential, subject to | ||
Subsection (c), and is not subject to disclosure under Chapter 552, | ||
Government Code, or to subpoena or discovery. | ||
(c) An adoption evaluator may disclose confidential | ||
information obtained under this section in a report prepared on the | ||
evaluation only to the extent that the evaluator determines that | ||
the information is relevant to the evaluator's recommendations in | ||
the report. | ||
(d) Except as provided by Subsection (c) or by an order of | ||
the court that appointed the adoption evaluator, an adoption | ||
evaluator commits an offense if the evaluator releases or discloses | ||
confidential information obtained from the department under this | ||
section. An offense under this section is a Class A misdemeanor. | ||
ARTICLE 3. TESTIMONY IN SUITS AFFECTING THE PARENT-CHILD | ||
RELATIONSHIP | ||
SECTION 3.01. Chapter 104, Family Code, is amended by | ||
adding Section 104.008 to read as follows: | ||
Sec. 104.008. CERTAIN TESTIMONY PROHIBITED. (a) A person | ||
may not offer an expert opinion relating to the conservatorship of | ||
or possession of or access to a child at issue in a suit unless the | ||
person: | ||
(1) is appointed as the child's guardian ad litem under | ||
Subchapter A, Chapter 107; or | ||
(2) has conducted a child custody evaluation relating | ||
to the child under Subchapter E, Chapter 107. | ||
(b) In a disputed suit, a mental health professional may not | ||
make a recommendation regarding the conservatorship of or | ||
possession of or access to a child at issue in the suit unless the | ||
mental health professional: | ||
(1) is appointed as the child's guardian ad litem under | ||
Subchapter A, Chapter 107; or | ||
(2) has conducted a child custody evaluation relating | ||
to the child under Subchapter E, Chapter 107, and has evaluated all | ||
of the parties to the suit. | ||
(c) Subsection (b) does not apply to a mental health | ||
professional who is providing other relevant information and | ||
opinions relating to any party that the mental health professional | ||
has evaluated. | ||
ARTICLE 4. CONFORMING AMENDMENTS RELATING TO CHILD CUSTODY | ||
EVALUATIONS AND ADOPTION EVALUATIONS | ||
SECTION 4.01. The heading to Chapter 107, Family Code, is | ||
amended to read as follows: | ||
CHAPTER 107. SPECIAL APPOINTMENTS, CHILD CUSTODY EVALUATIONS, AND | ||
ADOPTION EVALUATIONS [ |
||
SECTION 4.02. Section 153.605(d), Family Code, is amended | ||
to read as follows: | ||
(d) An individual appointed as a parenting coordinator may | ||
not serve in any nonconfidential capacity in the same case, | ||
including serving as an amicus attorney, guardian ad litem, child | ||
custody [ |
||
Chapter 107, as a friend of the court under Chapter 202, or as a | ||
parenting facilitator under this subchapter. | ||
SECTION 4.03. Section 162.0025, Family Code, is amended to | ||
read as follows: | ||
Sec. 162.0025. ADOPTION SOUGHT BY MILITARY SERVICE MEMBER. | ||
In a suit for adoption, the fact that a petitioner is a member of the | ||
armed forces of the United States, a member of the Texas National | ||
Guard or the National Guard of another state, or a member of a | ||
reserve component of the armed forces of the United States may not | ||
be considered by the court, or any person performing an adoption | ||
evaluation [ |
||
in determining whether the adoption is in the best interest of the | ||
child or whether the petitioner would be a suitable parent. | ||
SECTION 4.04. Section 162.003, Family Code, is amended to | ||
read as follows: | ||
Sec. 162.003. ADOPTION EVALUATION [ |
||
|
||
adoption evaluation [ |
||
|
||
SECTION 4.05. Section 162.0045, Family Code, is amended to | ||
read as follows: | ||
Sec. 162.0045. PREFERENTIAL SETTING. The court shall grant | ||
a motion for a preferential setting for a final hearing on an | ||
adoption and shall give precedence to that hearing over all other | ||
civil cases not given preference by other law if the adoption | ||
evaluation [ |
||
for the person seeking to adopt the child has been obtained. | ||
SECTION 4.06. Section 203.004(a), Family Code, is amended | ||
to read as follows: | ||
(a) A domestic relations office may: | ||
(1) collect and disburse child support payments that | ||
are ordered by a court to be paid through a domestic relations | ||
registry; | ||
(2) maintain records of payments and disbursements | ||
made under Subdivision (1); | ||
(3) file a suit, including a suit to: | ||
(A) establish paternity; | ||
(B) enforce a court order for child support or | ||
for possession of and access to a child; and | ||
(C) modify or clarify an existing child support | ||
order; | ||
(4) provide an informal forum in which alternative | ||
dispute resolution is used to resolve disputes under this code; | ||
(5) prepare a court-ordered child custody evaluation | ||
or adoption evaluation [ |
||
(6) represent a child as an amicus attorney, an | ||
attorney ad litem, or a guardian ad litem in a suit in which: | ||
(A) termination of the parent-child relationship | ||
is sought; or | ||
(B) conservatorship of or access to a child is | ||
contested; | ||
(7) serve as a friend of the court; | ||
(8) provide predivorce counseling ordered by a court; | ||
(9) provide community supervision services under | ||
Chapter 157; | ||
(10) provide information to assist a party in | ||
understanding, complying with, or enforcing the party's duties and | ||
obligations under Subdivision (3); | ||
(11) provide, directly or through a contract, | ||
visitation services, including supervision of court-ordered | ||
visitation, visitation exchange, or other similar services; | ||
(12) issue an administrative writ of withholding under | ||
Subchapter F, Chapter 158; and | ||
(13) provide parenting coordinator services under | ||
Chapter 153. | ||
SECTION 4.07. Section 203.005(a), Family Code, is amended | ||
to read as follows: | ||
(a) The administering entity may authorize a domestic | ||
relations office to assess and collect: | ||
(1) an initial operations fee not to exceed $15 to be | ||
paid to the domestic relations office on each filing of an original | ||
suit, motion for modification, or motion for enforcement; | ||
(2) in a county that has a child support enforcement | ||
cooperative agreement with the Title IV-D agency, an initial child | ||
support service fee not to exceed $36 to be paid to the domestic | ||
relations office on the filing of an original suit; | ||
(3) a reasonable application fee to be paid by an | ||
applicant requesting services from the office; | ||
(4) a reasonable attorney's fee and court costs | ||
incurred or ordered by the court; | ||
(5) a monthly service fee not to exceed $3 to be paid | ||
annually in advance by a managing conservator and possessory | ||
conservator for whom the domestic relations office provides child | ||
support services; | ||
(6) community supervision fees as provided by Chapter | ||
157 if community supervision officers are employed by the domestic | ||
relations office; | ||
(7) a reasonable fee for preparation of a | ||
court-ordered child custody evaluation or adoption evaluation | ||
[ |
||
(8) in a county that provides visitation services | ||
under Sections 153.014 and 203.004 a reasonable fee to be paid to | ||
the domestic relations office at the time the visitation services | ||
are provided; | ||
(9) a fee to reimburse the domestic relations office | ||
for a fee required to be paid under Section 158.503(d) for filing an | ||
administrative writ of withholding; | ||
(10) a reasonable fee for parenting coordinator | ||
services; and | ||
(11) a reasonable fee for alternative dispute | ||
resolution services. | ||
SECTION 4.08. Section 261.201, Family Code, is amended by | ||
adding Subsection (f-2) to read as follows: | ||
(f-2) Not later than the 31st day after the date the person | ||
makes a request for information, the department shall provide to a | ||
child custody evaluator or adoption evaluator appointed under | ||
Chapter 107 any report, record, working paper, or other information | ||
in the possession, custody, or control of the department that | ||
pertains to an individual who is a subject of the evaluation. | ||
Confidential information provided under this subsection remains | ||
confidential, and the evaluator may disclose the information only | ||
as provided by Section 107.113 or 107.164 or by an order of the | ||
court that appointed the evaluator. | ||
SECTION 4.09. Section 411.1285(c), Government Code, is | ||
amended to read as follows: | ||
(c) Criminal history record information requested under | ||
this section, including information included in a report of a child | ||
custody evaluation or adoption evaluation [ |
||
under Chapter 107 [ |
||
released or disclosed by a domestic relations office to a person | ||
other than the court ordering the child custody evaluation or | ||
adoption evaluation [ |
||
the consent of the person who is the subject of the criminal history | ||
record information. | ||
SECTION 4.10. Section 152.06331(f), Human Resources Code, | ||
is amended to read as follows: | ||
(f) Fees for the preparation of a court-ordered child | ||
custody evaluation or adoption evaluation [ |
||
other services provided by the domestic relations office, other | ||
than services related to the collection of child support, must be | ||
reasonable and imposed on a sliding scale according to the | ||
financial resources of the parties using the services. | ||
ARTICLE 5. REPEALER | ||
SECTION 5.01. Subchapter D, Chapter 107, Family Code, is | ||
repealed. | ||
ARTICLE 6. TRANSITION AND EFFECTIVE DATE | ||
SECTION 6.01. (a) Not later than September 1, 2014, the | ||
Texas State Board of Examiners of Psychologists, the Texas State | ||
Board of Examiners of Professional Counselors, the Texas State | ||
Board of Social Worker Examiners, the Texas State Board of | ||
Examiners of Marriage and Family Therapists, and the Texas Medical | ||
Board shall adopt any rules necessary for license holders to comply | ||
with the requirements of Subchapters E and F, Chapter 107, Family | ||
Code, as added by this Act, and specifying that a person licensed by | ||
any of the boards is subject to the rules of the board that licensed | ||
the person when appointed by a court to conduct a child custody | ||
evaluation or adoption evaluation under Subchapter E or F, Chapter | ||
107, Family Code, as added by this Act. | ||
(b) As soon as possible after the effective date of this | ||
Act, the Texas State Board of Examiners of Psychologists, the Texas | ||
State Board of Examiners of Professional Counselors, and the Texas | ||
State Board of Examiners of Marriage and Family Therapists shall | ||
adopt rules prohibiting a psychological associate, a licensed | ||
specialist in school psychology, a provisionally licensed | ||
psychologist, a licensed professional counselor intern, and a | ||
licensed marriage and family therapist associate from conducting a | ||
child custody evaluation under Subchapter E, Chapter 107, Family | ||
Code, as added by this Act, unless the person is otherwise qualified | ||
to conduct the evaluation. | ||
(c) As soon as possible after the effective date of this | ||
Act, the executive commissioner of the Health and Human Services | ||
Commission shall adopt rules prohibiting a licensed chemical | ||
dependency counselor from conducting a child custody evaluation as | ||
a child custody evaluator under Subchapter E, Chapter 107, Family | ||
Code, as added by this Act, unless the person is otherwise qualified | ||
to conduct the evaluation or is appointed by a court to conduct the | ||
evaluation under Section 107.105, Family Code, as added by this | ||
Act. | ||
(d) Not later than September 1, 2014, the executive | ||
commissioner of the Health and Human Services Commission shall | ||
adopt any rules necessary to implement Subchapters E and F, Chapter | ||
107, Family Code, as added by this Act, including rules that direct | ||
a person to report any complaints relating to the outcome of a child | ||
custody evaluation or adoption evaluation conducted under | ||
Subchapters E and F, Chapter 107, Family Code, as added by this Act, | ||
to the court that ordered the evaluation instead of to the licensing | ||
authority that issued a professional license to the person who | ||
conducted the evaluation. | ||
SECTION 6.02. The changes in law made by this Act apply to a | ||
suit affecting the parent-child relationship that is pending in a | ||
court on the effective date of this Act or that is filed on or after | ||
that date. | ||
SECTION 6.03. This Act takes effect September 1, 2013. |