85R13093 MCK-F     By: Burrows H.B. No. 3297       A BILL TO BE ENTITLED   AN ACT   relating to certain suits affecting the parent-child relationship.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 105.002, Family Code, is amended by   adding Subsection (d) to read as follows:          (d)  In a suit affecting the parent-child relationship in   which the Department of Family and Protective Services seeks   termination of the parent-child relationship, the court may not   issue broad-form questions to the jury on the issue of whether to   terminate the parent-child relationship. The court shall instruct   the jury to find from the evidence whether the grounds for   termination of the parent-child relationship alleged in the   petition are true. If the petition alleges more than one ground for   termination, the jury shall indicate in the verdict which grounds   are sustained by the evidence and which are not sustained. To the   extent that this subsection conflicts with the Texas Rules of Civil   Procedure, this subsection controls. Notwithstanding Section   22.004, Government Code, the supreme court may not amend or adopt   rules in conflict with this subsection.          SECTION 2.  Section 154.001, Family Code, is amended by   amending Subsection (b) and adding Subsection (b-1) to read as   follows:          (b)  In a suit filed by the Department of Family and   Protective Services to be named managing conservator of a child,   the court may not order a parent of the child to make periodic   payments for the support of the child while the suit is pending,   except as provided by this section. [The court may order either or   both parents to make periodic payments for the support of a child in   a proceeding in which the Department of Protective and Regulatory   Services is named temporary managing conservator.]          (b-1)  In a proceeding in which a court renders a final order   appointing the Department of Family and Protective [and Regulatory]   Services as [is named permanent] managing conservator of a child   whose parents' rights have not been terminated, the court shall   order each parent that is financially able to make periodic   payments for the support of the child.          SECTION 3.  Section 161.001, Family Code, is amended by   adding Subsection (c) to read as follows:          (c)  A court may not make a finding under Subsection (b) and   order termination of the parent-child relationship based solely on   evidence that the parent:                (1)  homeschooled the child;                (2)  declined immunization for the child for reasons of   conscience, including a religious belief;                (3)  engaged in reasonable discipline of the child; or                (4)  has been charged with a 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.          SECTION 4.  Subchapter B, Chapter 161, Family Code, is   amended by adding Section 161.1011 to read as follows:          Sec. 161.1011.  FILING REQUIREMENT FOR PETITION RELATING TO   MORE THAN ONE CHILD.  (a)  Before filing a petition for the   termination of the parent-child relationship relating to more than   one child, the Department of Family and Protective Services must   determine whether any court has continuing, exclusive jurisdiction   of a child named in the petition.  If a court is determined to have   continuing, exclusive jurisdiction of a child named in the   petition, the department shall file the petition in that court.          (b)  If more than one court has continuing, exclusive   jurisdiction of a child named in the petition, the department shall   file the petition in the court that has most recently exercised   continuing, exclusive jurisdiction of a child named in the   petition.          SECTION 5.  Section 161.206, Family Code, is amended by   adding Subsection (a-1) to read as follows:          (a-1)  In a suit filed by the Department of Family and   Protective Services seeking termination of the parent-child   relationship for both parents of the child, the court may order   termination of the parent-child relationship for both parents only   if the court finds by clear and convincing evidence grounds for the   termination of the parent-child relationship for each parent. An   order rendered under this subsection must state the grounds for   terminating the parent-child relationship for each parent.          SECTION 6.  Subchapter B, Chapter 262, Family Code, is   amended by adding Section 262.116 to read as follows:          Sec. 262.116. LIMITS ON REMOVAL.  (a)  The Department of   Family and Protective Services may not take possession of a child   under this subchapter based solely on evidence that the parent:                (1)  homeschooled the child;                (2)  declined immunization for the child for reasons of   conscience, including a religious belief;                (3)  engaged in reasonable discipline of the child; or                (4)  has been charged with a 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.          (b)  The department shall train child protective services   caseworkers regarding the prohibitions on removal provided under   Subsection (a).          (c)  The executive commissioner of the Health and Human   Services Commission may adopt rules to implement this section.           SECTION 7.  Section 262.101, Family Code, is amended to read   as follows:          Sec. 262.101.  FILING PETITION BEFORE TAKING POSSESSION OF   CHILD. An original suit filed by a governmental entity that   requests permission to take possession of a child without prior   notice and a hearing must be supported by an affidavit sworn to by a   person with personal knowledge and stating facts sufficient to   produce in the mind of a reasonable person a firm belief or   conviction [satisfy a person of ordinary prudence and caution]   that:                (1)  there is an immediate danger to the physical   health or safety of the child [or the child has been a victim of   neglect or sexual abuse] and that continuation in the home would be   contrary to the child's welfare;                (2)  there is no time, consistent with the physical   health or safety of the child, for a full adversary hearing under   Subchapter C; and                (3)  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.          SECTION 8.  Section 262.102(a), Family Code, is amended to   read as follows:          (a)  Before a court may, without prior notice and a hearing,   issue a temporary order for the conservatorship of a child under   Section 105.001(a)(1) or a temporary restraining order or   attachment of a child authorizing a governmental entity to take   possession of a child in a suit brought by a governmental entity,   the court must find the evidence is sufficient to produce in the   mind of a reasonable person a firm belief or conviction that:                (1)  there is an immediate danger to the physical   health or safety of the child [or the child has been a victim of   neglect or sexual abuse] and that continuation in the home would be   contrary to the child's welfare;                (2)  there is no time, consistent with the physical   health or safety of the child and the nature of the emergency, for a   full adversary hearing under Subchapter C; and                (3)  reasonable efforts, consistent with the   circumstances and providing for the safety of the child, were made   to prevent or eliminate the need for removal of the child.          SECTION 9.  Section 262.104, Family Code, is amended to read   as follows:          Sec. 262.104.  TAKING POSSESSION OF A CHILD IN EMERGENCY   WITHOUT A COURT ORDER. (a) If there is no time to obtain a   temporary order, temporary restraining order, or attachment under   Section 262.102(a) before taking possession of a child consistent   with the health and safety of that child, an authorized   representative of the Department of Family and Protective Services,   a law enforcement officer, or a juvenile probation officer may take   possession of a child without a court order under the following   conditions, only:                (1)  on personal knowledge of facts that would produce   in the mind of a reasonable person a firm belief or conviction [lead   a person of ordinary prudence and caution to believe] that there is   an immediate danger to the physical health or safety of the child;                (2)  on information furnished by another that has been   corroborated by personal knowledge of facts and all of which taken   together would produce in the mind of a reasonable person a firm   belief or conviction [lead a person of ordinary prudence and   caution to believe] that there is an immediate danger to the   physical health or safety of the child;                (3)  on personal knowledge of facts that would produce   in the mind of a reasonable person a firm belief or conviction [lead   a person of ordinary prudence and caution to believe] that the child   has been the victim of sexual abuse or of trafficking under Section   20A.02 or 20A.03, Penal Code;                (4)  on information furnished by another that has been   corroborated by personal knowledge of facts and all of which taken   together would produce in the mind of a reasonable person a firm   belief or conviction [lead a person of ordinary prudence and   caution to believe] that the child has been the victim of sexual   abuse or of trafficking under Section 20A.02 or 20A.03, Penal Code;   or                (5)  on information furnished by another that has been   corroborated by personal knowledge of facts and all of which taken   together would produce in the mind of a reasonable person a firm   belief or conviction [lead a person of ordinary prudence and   caution to believe] that the parent or person who has possession of   the child is currently using a controlled substance as defined by   Chapter 481, Health and Safety Code, and the use constitutes an   immediate danger to the physical health or safety of the child.          (b)  An authorized representative of the Department of   Family and Protective Services, a law enforcement officer, or a   juvenile probation officer may take possession of a child under   Subsection (a) on personal knowledge or information furnished by   another, that has been corroborated by personal knowledge, that   would produce in the mind of a reasonable person a firm belief or   conviction [lead a person of ordinary prudence and caution to   believe] that the parent or person who has possession of the child   has permitted the child to remain on premises used for the   manufacture of methamphetamine.          SECTION 10.  Section 262.107(a), Family Code, is amended to   read as follows:          (a)  The court shall order the return of the child at the   initial hearing regarding a child taken in possession without a   court order by a governmental entity unless the court determines   based on clear and convincing evidence [is satisfied] that:                (1)  there is a continuing danger to the physical   health or safety of the child if the child is returned to the   parent, managing conservator, possessory conservator, guardian,   caretaker, or custodian who is presently entitled to possession of   the child or the evidence shows that the child has been the victim   of sexual abuse or of trafficking under Section 20A.02 or 20A.03,   Penal Code, on one or more occasions and that there is a substantial   risk that the child will be the victim of sexual abuse or of   trafficking in the future;                (2)  continuation of the child in the home would be   contrary to the child's welfare; and                (3)  reasonable efforts, consistent with the   circumstances and providing for the safety of the child, were made   to prevent or eliminate the need for removal of the child.          SECTION 11.  Section 262.113, Family Code, is amended to   read as follows:          Sec. 262.113.  FILING SUIT WITHOUT TAKING POSSESSION OF   CHILD. 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 produce in the mind of a   reasonable person a firm belief or conviction [satisfy a person of   ordinary prudence and caution] that:                (1)  the child has been a victim of neglect or abuse;                (2)  reasonable efforts have been made to prevent or   eliminate the need to remove the child from the child's home; and                (3) [(2)]  allowing the child to remain in the home   would be contrary to the child's welfare.          SECTION 12.  Section 262.201, Family Code, is amended by   adding Subsection (a-5) and amending Subsections (b) and (c) to   read as follows:          (a-5)  If a parent who is not indigent appears in opposition   to the suit, the court may, for good cause shown, postpone the full   adversary hearing for not more than seven days from the date of the   parent's appearance to allow the parent to hire an attorney or to   provide the parent's attorney time to respond to the petition and   prepare for the hearing.  A postponement under this subsection is   subject to the limits and requirements prescribed by Subsection   (a-3).          (b)  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 unless the court finds sufficient   evidence to produce in the mind of a reasonable person a firm belief   or conviction [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.          (c)  If the court finds sufficient evidence to produce in the   mind of a reasonable person a firm belief or conviction [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. The court shall require each parent, alleged father, or   relative of the child before the court to complete the proposed   child placement resources form provided under Section 261.307 and   file the form with the court, if the form has not been previously   filed with the court, and provide the Department of Family and   Protective Services with information necessary to locate any other   absent parent, alleged father, or relative of the child. The court   shall inform each parent, alleged father, or relative of the child   before the court that the person's failure to submit the proposed   child placement resources form will not delay any court proceedings   relating to the child. The court shall inform each parent in open   court that parental and custodial rights and duties may be subject   to restriction or to termination unless the parent or parents are   willing and able to provide the child with a safe environment. If   the court finds that the child requires protection from family   violence by a member of the child's family or household, the court   shall render a protective order under Title 4 for the child. In   this subsection, "family violence" has the meaning assigned by   Section 71.004.          SECTION 13.  Section 262.205(b), Family Code, is amended to   read as follows:          (b)  After the hearing, the court may 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   produce in the mind of a reasonable person a firm belief or   conviction [satisfy a person of ordinary prudence and caution]   that:                (1)  reasonable efforts have been made to prevent or   eliminate the need to remove the child from the child's home; and                (2)  allowing the child to remain in the home would be   contrary to the child's welfare.          SECTION 14.  Subchapter C, Chapter 262, Family Code, is   amended by adding Section 262.206 to read as follows:          Sec. 262.206.  EX PARTE HEARINGS PROHIBITED. Unless   otherwise authorized by law, a hearing held by a court in a suit   under this chapter may not be ex parte.          SECTION 15.  Section 263.401, Family Code, is amended to   read as follows:          Sec. 263.401.  DISMISSAL AFTER ONE YEAR; NEW TRIALS;   EXTENSION. (a) Unless the court has commenced the trial on the   merits or granted an extension under Subsection (b) or (b-1), on the   first Monday after the first anniversary of the date the court   rendered a temporary order appointing the department as temporary   managing conservator, the court's jurisdiction over [court shall   dismiss] the suit affecting the parent-child relationship filed by   the department that requests termination of the parent-child   relationship or requests that the department be named conservator   of the child is terminated and the suit is automatically dismissed   without a court order.          (b)  Unless the court has commenced the trial on the merits,   the court may not retain the suit on the court's docket after the   time described by Subsection (a) unless the court finds that   extraordinary circumstances necessitate the child remaining in the   temporary managing conservatorship of the department and that   continuing the appointment of the department as temporary managing   conservator is in the best interest of the child. If the court   makes those findings, the court may retain the suit on the court's   docket for a period not to exceed 180 days after the time described   by Subsection (a). If the court retains the suit on the court's   docket, the court shall render an order in which the court:                (1)  schedules the new date on which the suit will be   automatically dismissed if the trial on the merits has not   commenced, which date must be not later than the 180th day after the   time described by Subsection (a);                (2)  makes further temporary orders for the safety and   welfare of the child as necessary to avoid further delay in   resolving the suit; and                (3)  sets the trial on the merits on a date not later   than the date specified under Subdivision (1).          (b-1)  If, after commencement of the initial trial on the   merits within the time required by Subsection (a) or (b), the court   grants a motion for a new trial or mistrial, or the case is remanded   to the court by an appellate court following an appeal of the   court's final order, the court shall retain the suit on the court's   docket and render an order in which the court:                (1)  schedules a new date on which the suit will be   automatically dismissed if the new trial has not commenced, which   must be a date not later than the 180th day after the date on which:                      (A)  the motion for a new trial or mistrial is   granted; or                      (B)  the appellate court remanded the case;                (2)  makes further temporary orders for the safety and   welfare of the child as necessary to avoid further delay in   resolving the suit; and                (3)  sets the new trial on the merits for a date not   later than the date specified under Subdivision (1).          (c)  If the court grants an extension under Subsection (b) or   (b-1) but does not commence the trial on the merits before the   dismissal date, the court's jurisdiction over [court shall dismiss]   the suit is terminated and the suit is automatically dismissed   without a court order. The court may not grant an additional   extension that extends the suit beyond the required date for   dismissal under Subsection (b) or (b-1), as applicable.          SECTION 16.  Section 264.009(a), Family Code, is amended to   read as follows:          (a)  Except as provided by Subsection (b)[, (c),] or (f), in   any action under this code, the department shall be represented in   court by the county attorney of the county where the action is   brought, unless the district attorney or criminal district attorney   of the county elects to provide representation.          SECTION 17.  The following provisions are repealed:                (1)  Article 56.54(j), Code of Criminal Procedure;                (2)  Section 201.014(b), Family Code;                (3)  Subchapter C, Chapter 201, Family Code; and                (4)  Sections 264.009(c), (d), and (e), Family Code.          SECTION 18.  (a)  Except as provided by Subsection (b) of   this section, 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.          (b)  The changes made by this Act to Section 263.401, Family   Code, apply only to a suit affecting the parent-child relationship   pending in a trial court on the effective date of this Act or filed   on or after the effective date of this Act. A suit affecting the   parent-child relationship in which a final order is rendered before   the effective date of this Act is governed by the law in effect on   the date the order was rendered, and the former law is continued in   effect for that purpose.          SECTION 19.  This Act takes effect September 1, 2017.