Bill Text: TX HB2308 | 2021-2022 | 87th Legislature | Comm Sub

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Bill Title: Relating to procedures in certain suits affecting the parent-child relationship filed by the Department of Family and Protective Services.

Spectrum: Slight Partisan Bill (Republican 45-27)

Status: (Engrossed - Dead) 2021-05-26 - Removed from local & uncontested calendar [HB2308 Detail]

Download: Texas-2021-HB2308-Comm_Sub.html

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By: Gates, et al. (Senate Sponsor - Kolkhorst) H.B. No. 2308
(In the Senate - Received from the House May 5, 2021;
May 10, 2021, read first time and referred to Committee on Health &
Human Services; May 20, 2021, reported favorably by the following
vote: Yeas 8, Nays 0; May 20, 2021, sent to printer.)
Click here to see the committee vote

A BILL TO BE ENTITLED
AN ACT
relating to procedures in certain suits affecting the parent-child
relationship filed by the Department of Family and Protective
Services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 262.101, Family Code, is amended to read
as follows:
Sec. 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
CHILD. (a) 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
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;
(2) continuation in the home would be contrary to the
child's welfare;
(3) there is no time, consistent with the physical
health or safety of the child, for a full adversary hearing under
Subchapter C; [and]
(4) the child would not be adequately protected in the
child's home with an order for the removal of the alleged
perpetrator under Section 262.1015 or 262.1016 or a protective
order issued under Title 4;
(5) placing the child with a relative or designated
caregiver or with a caregiver under a parental child safety
placement agreement authorized by Subchapter L, Chapter 264:
(A) was offered but refused;
(B) was not possible because there was no time,
consistent with the physical health or safety of the child and the
nature of the emergency, to conduct the caregiver evaluation; or
(C) would pose an immediate danger to the
physical health or safety of the child; and
(6) 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.
(b) The affidavit required by Subsection (a) must describe
all reasonable efforts that were made to prevent or eliminate the
need for the removal of the child.
SECTION 2. Subchapter B, Chapter 262, Family Code, is
amended by adding Section 262.1016 to read as follows:
Sec. 262.1016. AGREED ORDER FOR REMOVAL OF ALLEGED
PERPETRATOR. (a) An alleged perpetrator of abuse or neglect may
agree in writing to an order under Section 262.1015 requiring the
alleged perpetrator to leave the residence of the child. An
agreement under this section is subject to the approval of the
court.
(b) An agreed order under this section must contain the
following statement in boldface type and capital letters: "YOUR
AGREEMENT TO THIS ORDER IS NOT AN ADMISSION OF CHILD ABUSE OR
NEGLECT ON YOUR PART AND CANNOT BE USED AGAINST YOU AS AN ADMISSION
OF CHILD ABUSE OR NEGLECT."
(c) An agreed order under this section may not be used
against an alleged perpetrator as an admission of child abuse or
neglect.
(d) An agreed order under this section is enforceable
civilly or criminally but is not enforceable as a contract.
(e) At any time, a person affected by an agreed order under
this section may request the court to terminate the order. The court
shall terminate the agreed order on finding the order is no longer
needed and terminating the order is in the best interest of the
child.
SECTION 3. 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 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;
(2) continuation in the home would be contrary to the
child's welfare;
(3) 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]
(4) the child would not be adequately protected in the
child's home with an order for the removal of the alleged
perpetrator under Section 262.1015 or 262.1016 or a protective
order issued under Title 4;
(5) placing the child with a relative or designated
caregiver or with a caregiver under a parental child safety
placement agreement authorized by Subchapter L, Chapter 264:
(A) was offered but refused;
(B) was not possible because there was no time,
consistent with the physical health or safety of the child and the
nature of the emergency, to conduct the caregiver evaluation; or
(C) would pose an immediate danger to the
physical health or safety of the child; and
(6) 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 4. Section 262.105, Family Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) An original suit filed by a governmental entity after
taking possession of a child under Section 262.104 must be
supported by an affidavit stating facts sufficient to satisfy a
person of ordinary prudence and caution that:
(1) based on the affiant's personal knowledge or on
information furnished by another person corroborated by the
affiant's personal knowledge, one of the following circumstances
existed at the time the child was taken into possession:
(A) there was an immediate danger to the physical
health or safety of the child;
(B) the child was the victim of sexual abuse or of
trafficking under Section 20A.02 or 20A.03, Penal Code;
(C) the parent or person who had possession of
the child was using a controlled substance as defined by Chapter
481, Health and Safety Code, and the use constituted an immediate
danger to the physical health or safety of the child; or
(D) the parent or person who had possession of
the child permitted the child to remain on premises used for the
manufacture of methamphetamine; and
(2) based on the affiant's personal knowledge:
(A) continuation of the child in the home would
have been contrary to the child's welfare;
(B) there was no time, consistent with the
physical health or safety of the child, for a full adversary hearing
under Subchapter C; [and]
(C) the child would not be adequately protected
in the child's home with an order for the removal of the alleged
perpetrator under Section 262.1015 or 262.1016 or a protective
order issued under Title 4;
(D) placing the child with a relative or
designated caregiver or with a caregiver under a parental child
safety placement agreement authorized by Subchapter L, Chapter 264:
(i) was offered but refused;
(ii) was not possible because there was no
time, consistent with the physical health or safety of the child and
the nature of the emergency, to conduct the caregiver evaluation;
or
(iii) would pose an immediate danger to the
physical health or safety of the child; and
(E) 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.
(c) The affidavit required by Subsection (b) must describe
all reasonable efforts that were made to prevent or eliminate the
need for the removal of the child.
SECTION 5. 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 is satisfied
that:
(1) the evidence shows that one of the following
circumstances exists:
(A) 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;
(B) 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;
(C) 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; or
(D) the parent or person who has possession of
the child has permitted the child to remain on premises used for the
manufacture of methamphetamine;
(2) continuation of the child in the home would be
contrary to the child's welfare; [and]
(3) the child would not be adequately protected in the
child's home with an order for the removal of the alleged
perpetrator under Section 262.1015 or 262.1016 or a protective
order issued under Title 4;
(4) placing the child with a relative or designated
caregiver or with a caregiver under a parental child safety
placement agreement authorized by Subchapter L, Chapter 264:
(A) was offered but refused;
(B) was not possible because there was no time,
consistent with the physical health or safety of the child and the
nature of the emergency, to conduct the caregiver evaluation; or
(C) would pose an immediate danger to the
physical health or safety of the child; and
(5) 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 6. Section 262.113, Family Code, is amended to read
as follows:
Sec. 262.113. FILING SUIT WITHOUT TAKING POSSESSION OF
CHILD. (a) An original suit filed by a governmental entity that
requests to take possession of a child after notice and a hearing
must be supported by an affidavit sworn to by a person with personal
knowledge and stating facts sufficient to satisfy a person of
ordinary prudence and caution that:
(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 that allowing the
child to remain in the 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, have been
made to prevent or eliminate the need to remove the child from the
child's home.
(b) The affidavit required by Subsection (a) must describe
all reasonable efforts that were made to prevent or eliminate the
need for the removal of the child.
SECTION 7. The changes in law made by this Act apply to a
suit affecting the parent-child relationship that is filed on or
after the effective date of this Act. A suit filed before the
effective date of this Act is governed by the law in effect on the
date that the suit is filed, and the former law is continued in
effect for that purpose.
SECTION 8. This Act takes effect September 1, 2021.
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