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Legislative Update, 83 rd Session

Legislative Update, 83 rd Session. Hon. Dean Rucker, District Judge, 318 th Judicial District Tina Amberboy, Executive Director, Children’s Commission Tiffany Roper, Assistant Director, Children’s Commission. Legislative Update, 83 rd Session. Chapter 107 - Appointed Counsel

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Legislative Update, 83 rd Session

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  1. Legislative Update, 83rd Session Hon. Dean Rucker, District Judge, 318th Judicial DistrictTina Amberboy, Executive Director, Children’s Commission Tiffany Roper, Assistant Director, Children’s Commission

  2. Legislative Update, 83rd Session Chapter 107 - Appointed Counsel • HB915 – enrolled 5/17 • HB2619- passed House; reported favorably from Senate Health and Human Services 5/15; recommended for local and uncontested calendar • SB768 - passed Senate, reported favorably from House Judiciary and Civil Jurisprudence; recommended to Local and Consent 5/13 • SB1759 - passed Senate; reported favorably from House Judiciary and Civil Jurisprudence; placed on Local, Consent and Resolutions Calendar 5/20

  3. Legislative Update, 83rd Session • §§§ 107.002, 107.003, 107.004 - GAL/AAL Rights and Duties • Requires AALs and GALs to: • Review the medical care provided to the child • In a developmentally appropriate manner, elicit the child’s opinion on the medical care being provided • For youth at least 16 years of age, the AAL must advise the youth of right to request that the court authorize the youth to act as own medical consenter • Requires AALs and GALs to determine whether the child’s education goals have been identified and addressed • Imposes an ongoing duty for 3.0 hours of CLE related to representing children in CPS cases

  4. Legislative Update, 83rd Session • §§ 107.11, 107.12 - GAL/AAL Appointments • Deletes reference to full adversary hearing and instead refers to Chapter 262

  5. Legislative Update, 83rd Session • §§§ 107.0131, 107.0132, 107.014 - Parent Attorney Rights and Duties • Restructures 107.0131 and imposes ongoing duty for 3.0 hours of CLE related to representing parents in CPS cases • Amends 107.0132 to clarify that once attorney appointed to represent an alleged father has completed due diligence, the court can dismiss the attorney from the case • Adds 107.014 to limit the duties of an attorney appointed to represent a parent cited by publication, and once limited duties are satisfied, the court can dismiss the attorney from the case

  6. Legislative Update, 83rd Session • § 107.013 – Parent Right to Attorney • Clarifies that the right to court appointed attorney is triggered when the parent is indigent and appears in opposition to either termination or conservatorship

  7. Legislative Update, 83rd Session Chapter 161 - Termination of Parental Rights • HB154 – enrolled 5/18 • HB1228- passed House; referred to Senate Jurisprudence; testimony taken in committee and left pending 5/16 • SB768 - passed Senate; reported favorably from House Judiciary and Civil Jurisprudence; recommended to Local and Consent 5/13

  8. Legislative Update, 83rd Session • § 161.001(1)(L) – New Termination Ground • the parent has been convicted or placed on community supervision, including deferred adjudication, • for being criminally responsible for the death or serious injury of a child under the Penal Code or under a law of another state, federal law, or the Uniform Code of Military Justice that contain similar elements of an offense under the Penal Code sections

  9. Legislative Update, 83rd Session • § 161.005 – Duty to Pay Child Support • Petition for termination must be filed not later than the second anniversary (rather than the first) of the date the petitioner becomes aware he is not the genetic father • It also ends the petitioner’s obligation to pay interest that accrues after the date of the order

  10. Legislative Update, 83rd Session • § 161.007 – Sexual Abuse by Parent • Requires that courts terminate the right of any parent, if the court finds by clear and convincing evidence that the parent engaged in conduct that constitutes: • An offense of continuous sexual abuse of a young child or children, • Sexual assault or aggravated sexual assault, or • Prohibited sexual conduct that resulted in the victim becoming pregnant with the parent’s child • No criminal conviction required

  11. Legislative Update, 83rd Session Chapter 261 – Investigations • HB1205 – sent to Governor 5/16 • SB44 - passed the Senate; heard in House Human Services, sent to Local and Consent 5/14 • SB152 – enrolled 5/17 • SB423 – sent to Governor 5/16

  12. Legislative Update, 83rd Session • § 261.004 – Statistics of Abuse and Neglect • § 261.004 requires DFPS to report number of children for whom DFPS is appointed MC because the parent voluntarily relinquished possession of the child solely to obtain mental health services for the child • Adds §§ 262.351 and 262.352 to require DFPS to notify parent of the option of joint managing conservatorship with DFPS, if that arrangement is in the best interest of the child • Parents can petition to have name removed from the Central Registry, if this was the only reason DFPS took custody • DFPS and DSHS directed to jointly study, develop, and implement change necessary to prevent the relinquishment of parental rights of children with serious mental health conditions

  13. Legislative Update, 83rd Session • § 261.101, Persons Required to Report; Time to Report Abuse and Neglect • Requires a person or professional to make report if the person or professional has cause to believe that an adult was a victim of abuse or neglect as a child and the person or professional determines in good faith that disclosure of the information is necessary to protect the health and safety of another child, or an elderly or disabled person. • The duty applies without exception to individuals whose personal communications may otherwise be privileged. • Requires a professional who has cause to believe a child has or may be abused or neglected to make a reportwithin 48 hours of the person’s first suspicion.

  14. Legislative Update, 83rd Session • § 261.3015 – Alternative Response • Allows DFPS to provide an alternative or “flexible” response for certain, less severe cases to allow DFPS to help families obtain services without making a final determination that abuse or neglect occurred • DFPS will study the regions where the “flexible response” is deployed

  15. Legislative Update, 83rd Session • § 261.109 – Failure to Report Abuse / Neglect; Penalty • Makes clear that professionals who have a duty to report abuse or neglect commit a crime when they fail to report • Failure to report is: • Class A misdemeanor; or • State jail felony if it is shown on the trial of the offense (of the failure to report) that the actor (a person or a professional) intentionally concealed the abuse or neglect

  16. Legislative Update, 83rd Session Chapter 262, Taking Possession of Child; Adversary Hearing • SB44 - passed the Senate; heard in House Human Services; sent to Local and Consent 5/14 • SB352 - sent to Governor 5/14 • SB768 - passed Senate; reported favorably from House Judiciary and Civil Jurisprudence; recommended to Local and Consent 5/13 • SB1759 - passed Senate; reported favorably from House Judiciary and Civil Jurisprudence; placed on Local, Consent and Resolutions Calendar 5/20

  17. Legislative Update, 83rd Session • §§ 262.1015, 262.103 – Removal of Alleged Perpetrator, and Duration of Temporary Restraining Order and Attachment • Amended to allow for an extension of a TRO granted pursuant to new § 262.201(a-3) • § 262.102 – Emergency Order Authorizing Possession of Child • Amended to require that the court provide notice to parents in the emergency order that they have the right to be represented by an attorney, if they: • are indigent, and • appear in opposition to the suit, whether for termination or conservatorship

  18. Legislative Update, 83rd Session • § 262.201 – Full Adversary Hearing; Findings of the Court • Amended to require the court to inform each unrepresented parent that the parent has the right to be represented by an attorney, if indigent and in opposition to the suit • Allows court to postpone the adversary hearing for up to seven days from the date of the attorney’s appointment to allow time to prepare. Time to prepare may be waived by the parent and the parent’s attorney

  19. Legislative Update, 83rd Session • § 262.2015 – Aggravated Circumstances • Authorizes the court to find aggravated circumstances against a parent, if the child or another child of the parent is a victim of serious bodily injury or sexual abuse inflicted by the parent or by another person with the parent’s consent

  20. Legislative Update, 83rd Session • §§§§ 262.115, 263.107, 263.108, 263.109 Visitation Plan • DFPS must provide parent and child opportunity to visit within 3 days of DFPS being named TMC unless DFPS determines not in child’s best interest or would conflict with an existing order restricting access to child • DFPS must develop temporary visitation schedule prior to adversary hearing • DFPS must develop a visitation plan within 30 days of being named the child’s TMC, if the permanency plan is reunification 

  21. Legislative Update, 83rd Session • Visitation plan must be developed in accordance with §263.107 and take into account the child’s safety, best interest, age, desires, and location, and resources available to supervise and transport • Visitation plan must be filed with the court 10 days prior to the status hearing  • Court must review the visitation plan and can modify the plan at the status hearing • Parents can request court to review and/or modify an original or amended visitation plan

  22. Legislative Update, 83rd Session • Courts must render an order regarding visitation that the court determines is appropriate  • If court determines visitation is not in child’s best interest, court must render an order that: • states the reasons that it is not in the child’s best interest, and • outlines specific steps the parent must take to be allowed to have visitation with the child • If the family is under a supervised visitation scheme, the order must outline the specific steps the parent must take to have the level of supervision reduced • Courts must also review visitation plan at permanency hearings under § 263.306, and render orders necessary to ensure the plan complies with § 263.107

  23. Legislative Update, 83rd Session Chapter 263- Permanency and Placement of Children • HB843 - passed House; reported favorably from Senate Jurisprudence 5/16; placed on intent calendar 5/20 • HB915 – enrolled 5/17 • HB2619- passed House; reported favorably from Senate Health and Human Services 5/15; recommended for local and uncontested calendar • SB352 - sent to Governor 5/14 • SB429 - passed Senate; reported favorably from House Judiciary and Civil Jurisprudence; recommended to Local and Consent 5/15 • SB534 – passed Senate; reported favorably from House Human Services; passed House on third reading 5/17 • SB768 - passed Senate, reported favorably from House Judiciary and Civil Jurisprudence; recommended to Local and Consent 5/13 • SB886 - passed Senate; reported favorably from House Human Services; passed House on third reading 5/17 • SB1759 - passed Senate; reported favorably from House Judiciary and Civil Jurisprudence; placed on Local, Consent and Resolutions Calendar 5/20

  24. Legislative Update, 83rd Session • §§ 263.301 and 263.501 - Notice to Child • Requires notice of permanency and placement review hearings to child at least ten years of age

  25. Legislative Update, 83rd Session • §§ 263.306, 263.503 – Permanency and Placement Review Hearings • Imposes new duties on courts at each review hearing to: • identify an education decision-maker for the child, if one has not previously been identified, and determine whether the child’s education needs and goals have been identified and addressed • review the medical care provided to the child, as required by §266.007, to: • ensure the child has been provided the opportunity to express their opinion on their medical care, and • for a child receiving psych meds, determine whether the child has been provided appropriate psychosocial therapies, behavior strategies, and other non-pharmaceutical interventions, AND has been seen by the prescribing physician at least once every 90 days

  26. Legislative Update, 83rd Session • New § 263.0025 • Federal and state special education law added to Texas Family Code: • When a "surrogate parent" needs to be appointed to make decisions regarding special education eligibility, services, placement, etc., for foster children • Provides for preferential consideration to be given to a foster parent when appointing a surrogate • Gives priority to the appointment of a relative or other designated caregiver if the foster parent is not appointed as the surrogate • Mirrors a provision in the Texas Family Code regarding the ability of a CASA to be appointed a surrogate in certain cases • Lists those individuals ineligible to be a surrogate parent under IDEA

  27. Legislative Update, 83rd Session • New § 263.004 • Clarifies education decision-making • If DFPS given education decision-making rights and duties when appointed MC and agency delegates some education decisions to an individual, DFPS must file report with court within 5 days and provide to parties and to school • DFPS must update if individual changes • If not DFPS when appointed MC, court needs to identify another individual to serve as education decision-maker

  28. Legislative Update, 83rd Session • § 263.009 - Permanency Planning Meetings • Requires DFPS to hold a permanency planning meeting not later than the 45th day from the date named TMC • Requires a multidisciplinary permanency planning meeting at 5 months and must involve • Child, if at least 7 years old, • Child’s AAL and GAL / volunteer advocate • Child’s caregiver • Parent and parent’s attorney (unless cannot be located, relinquished or TPR’d) • Any other person Dept deems important to the planning process • Identify barriers to executing the permanency plan • Identify strategies that will increase the probability of achieving the current permanency plan • Note about concurrent planning

  29. Legislative Update, 83rd Session • §§263.401, 263.403 - Procedure after Motion for New Trial, Mistrial or Appellate Remand after Initial Trial • Court: • May retain suit on docket • Shall schedule a new dismissal date not later than 180 days after grant of new trial, mistrial or remand • Shall make further temporary orders for the safety and welfare of child • Shall set a new trial date on the merits within the stated 180 day period • Dismissal required if trial not commenced before new dismissal date. No extensions beyond dismissal date.

  30. Legislative Update, 83rd Session • §263.408 – New Section -Dismissal or Nonsuit of Petition to Terminate Parental Rights • Before approving a nonsuit or dismissal by DFPS of petition to terminate: • Court shall consider whether the dismissal or nonsuit is in the best interest of the child • Court shall consider whether any orders for conservatorship, possession, or child support will continue • Court may issue new orders on conservatorship, possession, and child support

  31. Legislative Update, 83rd Session • § 263.0061 - Notice to Parents of Right to Counsel • Requires the court at the status hearing and at every Chapter 263 hearing to advise the parent of the parent’s right to be represented by an attorney if indigent and in opposition to the suit

  32. Legislative Update, 83rd Session • §§§§§ 263.601, 263.6015, 263.602, 263.6021, 263.603 – Extended Court Jurisdiction of Foster Youth Aging Out of Care • Clarifies provisions that allow Texas to receive federal reimbursement on behalf of young people between the ages of 18 and 21 who were permanently or temporarily placed under the care of DFPS and who elect to take advantage of extended foster care after turning 18 years of age • Changes Family Code to allow young people who are in either TMC or PMC of DFPS to enter into extended foster care when turn 18 years of age. Amendments will make all youths who remain in extended foster care eligible for federal reimbursement

  33. Legislative Update, 83rd Session • Clarifies the status of trial independence, which is necessary for federal funding and is mandatory for a minimum of six months for all youths who exit extended foster care on or after turning 18 years of age. A youth may be in trial independence more than once if the youth exits care more than once • Adds a provision stating that a young person who has been appointed a guardian through probate court is not in extended foster care, and is therefore not required to have the mandatory extended jurisdiction of the family law court after the probate court appoints a guardian and has jurisdiction over the young adult ward

  34. Legislative Update, 83rd Session • Chapter 153 - Conservatorship, Possession, and Access • HB1228 - passed House; referred to Senate Jurisprudence; testimony taken in committee and left pending 5/16

  35. §§ 153.004, 154.001(a-1) – History of Domestic Violence or Sexual Abuse • In addition to considering the commission of family violence, the court must consider evidence of sexual abuse in determining: (1) whether to appoint a party as sole or joint managing conservator; or (2) whether to deny, restrict, or limit possession of a child • With some exceptions, no access to a child with whom the parent engaged in continuous sexual abuse and the child became pregnant with the parent’s child • May order child support from the parent even if rights are terminated

  36. Legislative Update, 83rd Session • Miscellany • SB 1422 – placed on House Local and Consent 5/20 • § 102.014 to permit use of digitized signatures for pleadings and orders in suits affecting the parent-child relationship. • HB 1185 – passed House; reported favorably 5/16; recommended for local and uncontested calendar 5/16 • Repeals § 107.006(f) which requires AAL, GAL or amicus attorney to destroy all child records obtained during representation upon termination of appointment • HB 165 – reported favorably from House Human Services 4/18; sent to Calendars 4/29; no further action • § 102.003 • Reduces time limit on foster parent standing from 12 months to 6 months or 3 months when child was under 2 months old when placed with foster parent • Would not apply when DFPS permanency plan is reunification with parent and parent is making satisfactory progress on a plan to return the child prior to the first anniversary of placement with foster parent

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