Law:Title 5. The Parent-child Relationship And The Suit Affecting The Parent-child Relationship. Subtitle E. Protection Of The Child from Chapter 262. Procedures In Suit By Governmental Entity To Protect Health And Safety Of Child (Texas)

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Subtitle E. Protection Of The Child

Contents

Chapter 262. Procedures In Suit By Governmental Entity To Protect Health And Safety Of Child

Subchapter A. General Provisions

Section  262.001.  Authorized Actions By Governmental Entity.

(a) A governmental entity with an interest in the child may file a suit affecting the parent-child relationship requesting an order or take possession of a child without a court order as provided by this chapter.

(b)  In determining the reasonable efforts that are required to be made with respect to preventing or eliminating the need to remove a child from the child's home or to make it possible to return a child to the child's home, the child's health and safety is the paramount concern.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 1150, Sec. 10, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 29, eff. Sept. 1, 1999.



Section  262.002.  Jurisdiction.

A suit brought by a governmental entity requesting an order under this chapter may be filed in a court with jurisdiction to hear the suit in the county in which the child is found.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 1150, Sec. 11, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 30, eff. Sept. 1, 1999.



Section  262.003.  Civil Liability.

A person who takes possession of a child without a court order is immune from civil liability if, at the time possession is taken, there is reasonable cause to believe there is an immediate danger to the physical health or safety of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.



Section  262.004.  Accepting Voluntary Delivery Of Possession Of Child.

A law enforcement officer or a juvenile probation officer may take possession of a child without a court order on the voluntary delivery of the child by the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 101, eff. Sept. 1, 1995.



Section  262.005.  Filing Petition After Accepting Voluntary Delivery Of Possession Of Child.

When possession of the child has been acquired through voluntary delivery of the child to a law enforcement officer or juvenile probation officer, the law enforcement officer or juvenile probation officer taking the child into possession shall cause a suit to be filed not later than the 60th day after the date the child is taken into possession.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 102, eff. Sept. 1, 1995.



Section  262.006.  Living Child After Abortion.

(a) An authorized representative of the Department of Protective and Regulatory Services may assume the care, control, and custody of a child born alive as the result of an abortion as defined by Chapter 161.

(b)  The department shall file a suit and request an emergency order under this chapter.

(c)  A child for whom possession is assumed under this section need not be delivered to the court except on the order of the court.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.



Section  262.007.  Possession And Delivery Of Missing Child.

(a) A law enforcement officer who, during a criminal investigation relating to a child's custody, discovers that a child is a missing child and believes that a person may flee with or conceal the child shall take possession of the child and provide for the delivery of the child as provided by Subsection (b).

(b)  An officer who takes possession of a child under Subsection (a) shall deliver or arrange for the delivery of the child to a person entitled to possession of the child.

(c)  If a person entitled to possession of the child is not immediately available to take possession of the child, the law enforcement officer shall deliver the child to the Department of Protective and Regulatory Services. Until a person entitled to possession of the child takes possession of the child, the department may, without a court order, retain possession of the child not longer than five days after the date the child is delivered to the department. While the department retains possession of a child under this subsection, the department may place the child in foster home care. If a parent or other person entitled to possession of the child does not take possession of the child before the sixth day after the date the child is delivered to the department, the department shall proceed under this chapter as if the law enforcement officer took possession of the child under Section 262.104.

Added by Acts 1995, 74th Leg., ch. 776, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 685, Sec. 6, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1150, Sec. 12, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 31, eff. Sept. 1, 1999.



Section  262.008.  Abandoned Children.

(a) An authorized representative of the Department of Protective and Regulatory Services may assume the care, control, and custody of a child:

(1)  who is abandoned without identification or a means for identifying the child; and

(2)  whose identity cannot be ascertained by the exercise of reasonable diligence.

(b)  The department shall immediately file a suit to terminate the parent-child relationship of a child under Subsection (a).

(c)  A child for whom possession is assumed under this section need not be delivered to the court except on the order of the court.

Added by Acts 1997, 75th Leg., ch. 600, Sec. 4, eff. Jan. 1, 1998.



Section  262.009.  Temporary Care Of Child Taken Into Possession.

An employee of or volunteer with a law enforcement agency who successfully completes a background and criminal history check approved by the law enforcement agency may assist a law enforcement officer or juvenile probation officer with the temporary care of a child who is taken into possession by a governmental entity without a court order under this chapter until further arrangements regarding the custody of the child can be made.

Added by Acts 2003, 78th Leg., ch. 970, Sec. 1, eff. June 20, 2003.



Subchapter B. Taking Possession Of Child

Section  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 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.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 103, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 752, Sec. 1, eff. June 17, 1997; Acts 1999, 76th Leg., ch. 1150, Sec. 14, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 33, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 849, Sec. 1, eff. Sept. 1, 2001.



Section  262.1015.  Removal Of Alleged Perpetrator; Offense.

(a) If the department determines after an investigation that child abuse has occurred and that the child would be protected in the child's home by the removal of the alleged perpetrator of the abuse, the department shall file a petition for the removal of the alleged perpetrator from the residence of the child rather than attempt to remove the child from the residence.

(b)  A court may issue a temporary restraining order in a suit by the department for the removal of an alleged perpetrator under Subsection (a) if the department's petition states facts sufficient to satisfy the court that:

(1)  there is an immediate danger to the physical health or safety of the child or the child has been a victim of sexual abuse;

(2)  there is no time, consistent with the physical health or safety of the child, for an adversary hearing;

(3)  the child is not in danger of abuse from a parent or other adult with whom the child will continue to reside in the residence of the child; and

(4)  the issuance of the order is in the best interest of the child.

(c)  The order shall be served on the alleged perpetrator and on the parent or other adult with whom the child will continue to reside.

(d)  A temporary restraining order under this section expires not later than the 14th day after the date the order was rendered.

(e)  A temporary restraining order under this section and any other order requiring the removal of an alleged perpetrator from the residence of a child shall require that the parent or other adult with whom the child will continue to reside in the child's home make a reasonable effort to monitor the residence and report to the department and the appropriate law enforcement agency any attempt by the alleged perpetrator to return to the residence.

(f)  The court shall order the removal of an alleged perpetrator if the court finds that the child is not in danger of abuse from a parent or other adult with whom the child will continue to reside in the child's residence and that:

(1)  the presence of the alleged perpetrator in the child's residence constitutes a continuing danger to the physical health or safety of the child; or

(2)  the child has been the victim of sexual abuse and there is a substantial risk that the child will be the victim of sexual abuse in the future if the alleged perpetrator remains in the residence.

(g)  A person commits an offense if the person is a parent or other person with whom a child resides, the person is served with an order containing the requirement specified by Subsection (e), and the person fails to make a reasonable effort to monitor the residence of the child or to report to the department and the appropriate law enforcement agency an attempt by the alleged perpetrator to return to the residence. An offense under this section is a Class A misdemeanor.

(h)  A person commits an offense if, in violation of a court order under this section, the person returns to the residence of the child the person is alleged to have abused. An offense under this subsection is a Class A misdemeanor, except that the offense is a felony of the third degree if the person has previously been convicted under this subsection.

Added by Acts 1995, 74th Leg., ch. 943, Sec. 4, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 575, Sec. 19, eff. Sept. 1, 1997.



Section  262.102.  Emergency Order Authorizing Possession Of Child.

(a) Before a court may, without prior notice and a hearing, issue a temporary restraining order or attachment 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 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.

(b)  In determining whether there is an immediate danger to the physical health or safety of a child, the court may consider whether the child's household includes a person who has:

(1)  abused or neglected another child in a manner that caused serious injury to or the death of the other child; or

(2)  sexually abused another child.

(c)  If, based on the recommendation of or a request by the department, the court finds that child abuse or neglect has occurred and that the child requires protection from family violence by a member of the child's family or household, the court shall render a temporary order under Chapter 71 for the protection of the child. In this subsection, "family violence" has the meaning assigned by Section 71.004.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 104, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 752, Sec. 2, eff. June 17, 1997; Acts 1999, 76th Leg., ch. 1150, Sec. 15, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 34, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 849, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 7.002(m), eff. Sept. 1, 2003.



Section  262.103.  Duration Of Temporary Restraining Order And Attachment.

A temporary restraining order or attachment of the child issued under this chapter expires not later than 14 days after the date it is issued unless it is extended as provided by the Texas Rules of Civil Procedure.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.



Section 262.104.  Taking Possession Of A Child In Emergency Without A Court Order.

(a) If there is no time to obtain a temporary restraining order or attachment 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 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 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 lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse;

(4)  on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse; or

(5)  on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would 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 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.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 575, Sec. 20, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 282, Sec. 2, eff. August 1, 2005.



Section 262.1041.  Release Of Child By Law Enforcement Or Juvenile Probation Officer.

(a) A law enforcement or juvenile probation officer who takes possession of a child under this chapter may release the child to:

(1)  a child-placing agency licensed by the Department of Family and Protective Services under Chapter 42, Human Resources Code, if the agency is authorized by the department to take possession of the child;

(2)  the Department of Family and Protective Services; or

(3)  any other person authorized by law to take possession of the child.

(b)  A child-placing agency or other authorized person who takes possession of a child under this section shall:

(1)  immediately notify the Department of Family and Protective Services that the agency or other authorized person has taken possession of the child; and

(2)  with the assistance of the law enforcement or juvenile probation officer who releases the child to the agency or other authorized person, complete a form prescribed by the Department of Family and Protective Services that contains basic information regarding the child and the circumstances under which the officer took possession of the child and promptly submit the completed form to the department.

Added by Acts 2005, 79th Leg., Ch. 268, Sec. 1.32, eff. September 1, 2005.

Added by Acts 2005, 79th Leg., Ch. 516, Sec. 1, eff. June 17, 2005.



Section  262.105.  Filing Petition After Taking Possession Of Child In Emergency.

(a) When a child is taken into possession without a court order, the person taking the child into possession, without unnecessary delay, shall:

(1)  file a suit affecting the parent-child relationship;

(2)  request the court to appoint an attorney ad litem for the child; and

(3)  request an initial hearing to be held by no later than the first working day after the date the child is taken into possession.

(b)  If the Department of Protective and Regulatory Services files a suit affecting the parent-child relationship required under Subsection (a)(1) seeking termination of the parent-child relationship, the department shall file the suit not later than the 45th day after the date the department assumes the care, control, and custody of a child under Section 262.303.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 809, Sec. 2, eff. Sept. 1, 2001.



Section  262.106.  Initial Hearing After Taking Possession Of Child In Emergency Without Court Order.

(a) The court in which a suit has been filed after a child has been taken into possession without a court order by a governmental entity shall hold an initial hearing on or before the first working day after the date the child is taken into possession. The court shall render orders that are necessary to protect the physical health and safety of the child. If the court is unavailable for a hearing on the first working day, then, and only in that event, the hearing shall be held no later than the first working day after the court becomes available, provided that the hearing is held no later than the third working day after the child is taken into possession.

(b)  The initial hearing may be ex parte and proof may be by sworn petition or affidavit if a full adversary hearing is not practicable.

(c)  If the initial hearing is not held within the time required, the child shall be returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child.

(d)  For the purpose of determining under Subsection (a) the first working day after the date the child is taken into possession, the child is considered to have been taken into possession by the Department of Protective and Regulatory Services on the expiration of the five-day period permitted under Section 262.007(c) or 262.110(b), as appropriate.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 1150, Sec. 16, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 35, eff. Sept. 1, 1999.



Section  262.107.  Standard For Decision At Initial Hearing After Taking Possession Of Child Without A Court Order In Emergency.

(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)  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 on one or more occasions and that there is a substantial risk that the child will be the victim of sexual abuse 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.

(b)  In determining whether there is a continuing danger to the physical health or safety of a child, the court may consider whether the household to which the child would be returned includes a person who has:

(1)  abused or neglected another child in a manner that caused serious injury to or the death of the other child; or

(2)  sexually abused another child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 105, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 849, Sec. 3, eff. Sept. 1, 2001.



Section  262.108.  Unacceptable Facilities For Housing Child.

When a child is taken into possession under this chapter, that child may not be held in isolation or in a jail, juvenile detention facility, or other secure detention facility.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 1374, Sec. 9, eff. Sept. 1, 1997.



Section  262.109.  Notice To Parent, Conservator, Or Guardian.

(a) The department or other agency must give written notice as prescribed by this section to each parent of the child or to the child's conservator or legal guardian when a representative of the Department of Protective and Regulatory Services or other agency takes possession of a child under this chapter.

(b)  The written notice must be given as soon as practicable, but in any event not later than the first working day after the date the child is taken into possession.

(c)  The written notice must include:

(1)  the reasons why the department or agency is taking possession of the child and the facts that led the department to believe that the child should be taken into custody;

(2)  the name of the person at the department or agency that the parent, conservator, or other custodian may contact for information relating to the child or a legal proceeding relating to the child;

(3)  a summary of legal rights of a parent, conservator, guardian, or other custodian under this chapter and an explanation of the probable legal procedures relating to the child; and

(4)  a statement that the parent, conservator, or other custodian has the right to hire an attorney.

(d)  The written notice may be waived by the court at the initial hearing:

(1)  on a showing that:

(A)  the parents, conservators, or other custodians of the child could not be located; or

(B)  the department took possession of the child under Subchapter D; or

(2)  for other good cause.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 76, eff. Jan. 1, 1998; Acts 1999, 76th Leg., ch. 1150, Sec. 17, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 36, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 809, Sec. 3, eff. Sept. 1, 2001.



Section  262.110.  Taking Possession Of Child In Emergency With Intent To Return Home.

(a) An authorized representative of the Department of Protective and Regulatory Services, a law enforcement officer, or a juvenile probation officer may take temporary possession of a child without a court order on discovery of a child in a situation of danger to the child's physical health or safety when the sole purpose is to deliver the child without unnecessary delay to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child.

(b)  Until a parent or other person entitled to possession of the child takes possession of the child, the department may retain possession of the child without a court order for not more than five days. On the expiration of the fifth day, if a parent or other person entitled to possession does not take possession of the child, the department shall take action under this chapter as if the department took possession of the child under Section 262.104.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 1150, Sec. 18, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 37, eff. Sept. 1, 1999.



Section  262.112.  Expedited Hearing And Appeal.

(a) The Department of Protective and Regulatory Services is entitled to an expedited hearing under this chapter in any proceeding in which a hearing is required if the department determines that a child should be removed from the child's home because of an immediate danger to the physical health or safety of the child.

(b)  In any proceeding in which an expedited hearing is held under Subsection (a), the department, parent, guardian, or other party to the proceeding is entitled to an expedited appeal on a ruling by a court that the child may not be removed from the child's home.

(c)  If a child is returned to the child's home after a removal in which the department was entitled to an expedited hearing under this section and the child is the subject of a subsequent allegation of abuse or neglect, the department or any other interested party is entitled to an expedited hearing on the removal of the child from the child's home in the manner provided by Subsection (a) and to an expedited appeal in the manner provided by Subsection (b).

Added by Acts 1995, 74th Leg., ch. 943, Sec. 1, eff. Sept. 1, 1995. Renumbered from Family Code Sec. 262.111 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(29), eff. Sept. 1, 1997.



Section  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 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.

Added by Acts 1999, 76th Leg., ch. 1150, Sec. 19, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 38, eff. Sept. 1, 1999.



Section 262.114.  Evaluation Of Identified Relatives And Other Designated Individuals; Placement. (a)

Before a full adversary hearing under Subchapter C, the Department of Family and Protective Services must perform a background and criminal history check of the relatives or other designated individuals identified as a potential relative or designated caregiver, as defined by Section 264.751, on the proposed child placement resources form provided under Section 261.307.  The department shall evaluate each person listed on the form to determine the relative or other designated individual who would be the most appropriate substitute caregiver for the child and must complete a home study of the most appropriate substitute caregiver, if any, before the full adversary hearing. Until the department identifies a relative or other designated individual qualified to be a substitute caregiver, the department must continue to explore substitute caregiver options.  The time frames in this subsection do not apply to a relative or other designated individual located in another state.

(a-1)  At the full adversary hearing under Section 262.201, the department shall, after redacting any social security numbers, file with the court:

(1)  a copy of each proposed child placement resources form completed by the parent or other person having legal custody of the child;

(2)  a copy of any completed home study performed under Subsection (a); and

(3)  the name of the relative or other designated caregiver, if any, with whom the child has been placed.

(a-2)  If the child has not been placed with a relative or other designated caregiver by the time of the full adversary hearing under Section 262.201, the department shall file with the court a statement that explains:

(1)  the reasons why the department has not placed the child with a relative or other designated caregiver listed on the proposed child placement resources form; and

(2)  the actions the department is taking, if any, to place the child with a relative or other designated caregiver.

(b)  The department may place a child with a relative or other designated individual identified on the proposed child placement resources form if the department determines that the placement is in the best interest of the child.  The department may place the child with the relative or designated individual before conducting the background and criminal history check or home study required under Subsection (a).  The department shall provide a copy of an informational manual required under Section 261.3071 to the relative or other designated caregiver at the time of the child's placement.

(c)  The department shall consider placing a child who has previously been in the managing conservatorship of the department with a foster parent with whom the child previously resided if:

(1)  the department determines that placement of the child with a relative or designated caregiver is not in the child's best interest; and

(2)  the placement is available and in the child's best interest.

Added by Acts 2005, 79th Leg., Ch. 268, Sec. 1.33, eff. September 1, 2005.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 527, Sec. 1, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch. 856, Sec. 1, eff. September 1, 2009.



Subchapter C. Adversary Hearing

Section  262.201.  Full Adversary Hearing; Findings Of The Court.

(a) Unless the child has already been returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession and the temporary order, if any, has been dissolved, a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity.

(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 satisfy a person of ordinary prudence and caution that:

(1)  there was a danger to the physical health or safety of the child 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 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.

(d)  In determining whether there is a continuing danger to the physical health or safety of the child, the court may consider whether the household to which the child would be returned includes a person who:

(1)  has abused or neglected another child in a manner that caused serious injury to or the death of the other child; or

(2)  has sexually abused another child.

(e)  The court shall place a child removed from the child's custodial parent with the child's noncustodial parent or with a relative of the child if placement with the noncustodial parent is inappropriate, unless placement with the noncustodial parent or a relative is not in the best interest of the child.

(f)  When citation by publication is needed for a parent or alleged or probable father in an action brought under this chapter because the location of the parent, alleged father, or probable father is unknown, the court may render a temporary order without delay at any time after the filing of the action without regard to whether notice of the citation by publication has been published.

(g)  For the purpose of determining under Subsection (a) the 14th day after the date the child is taken into possession, a child is considered to have been taken into possession by the department on the expiration of the five-day period permitted under Section 262.007(c) or 262.110(b), as appropriate.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 107, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 575, Sec. 21, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 600, Sec. 5, eff. Jan, 1, 1998; Acts 1997, 75th Leg., ch. 603, Sec. 1, eff. Jan. 1, 1998; Acts 1997, 75th Leg., ch; 752, Sec. 3, eff. June 17, 1997; Acts 1997, 75th Leg., ch. 1022, Sec. 77, eff; Jan. 1, 1998; Acts 1997, 75th Leg., ch. 1022, Sec. 78, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 6.31, eff; Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1150, Sec. 20, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch; 1390, Sec. 39, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 306, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 849, Sec. 4, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 268, Sec. 1.34(a), eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch. 856, Sec. 2, eff. September 1, 2009.



Section  262.2015.  Aggravated Circumstances.

(a) The court may waive the requirement of a service plan and the requirement to make reasonable efforts to return the child to a parent and may accelerate the trial schedule to result in a final order for a child under the care of the department at an earlier date than provided by Subchapter D, Chapter 263, if the court finds that the parent has subjected the child to aggravated circumstances.

(b)  The court may find under Subsection (a) that a parent has subjected the child to aggravated circumstances if:

(1)  the parent abandoned the child without identification or a means for identifying the child;

(2)  the child is a victim of serious bodily injury or sexual abuse inflicted by the parent or by another person with the parent's consent;

(3)  the parent has engaged in conduct against the child that would constitute an offense under the following provisions of the Penal Code:

(A)  Section 19.02 (murder);

(B)  Section 19.03 (capital murder);

(C)  Section 19.04 (manslaughter);

(D)  Section 21.11 (indecency with a child);

(E)  Section 22.011 (sexual assault);

(F)  Section 22.02 (aggravated assault);

(G)  Section 22.021 (aggravated sexual assault);

(H)  Section 22.04 (injury to a child, elderly individual, or disabled individual);

(I)  Section 22.041 (abandoning or endangering child);

(J)  Section 25.02 (prohibited sexual conduct);

(K)  Section 43.25 (sexual performance by a child);

(L)  Section 43.26 (possession or promotion of child pornography); or

(M)  Section 21.02 (continuous sexual abuse of young child or children);

(4)  the parent voluntarily left the child alone or in the possession of another person not the parent of the child for at least six months without expressing an intent to return and without providing adequate support for the child;

(5)  the parent's parental rights with regard to another child have been involuntarily terminated based on a finding that the parent's conduct violated Section 161.001(1)(D) or (E) or a substantially equivalent provision of another state's law;

(6)  the parent has been convicted for:

(A)  the murder of another child of the parent and the offense would have been an offense under 18 U.S.C. Section 1111(a) if the offense had occurred in the special maritime or territorial jurisdiction of the United States;

(B)  the voluntary manslaughter of another child of the parent and the offense would have been an offense under 18 U.S.C. Section 1112(a) if the offense had occurred in the special maritime or territorial jurisdiction of the United States;

(C)  aiding or abetting, attempting, conspiring, or soliciting an offense under Subdivision (A) or (B); or

(D)  the felony assault of the child or another child of the parent that resulted in serious bodily injury to the child or another child of the parent; or

(7)  the parent's parental rights with regard to two other children have been involuntarily terminated.

(c)  On finding that reasonable efforts to make it possible for the child to safely return to the child's home are not required, the court shall at any time before the 30th day after the date of the finding, conduct an initial permanency hearing under Subchapter D, Chapter 263. Separate notice of the permanency plan is not required but may be given with a notice of a hearing under this section.

(d)  The Department of Protective and Regulatory Services shall make reasonable efforts to finalize the permanent placement of a child for whom the court has made the finding described by Subsection (c). The court shall set the suit for trial on the merits as required by Subchapter D, Chapter 263, in order to facilitate final placement of the child.

Added by Acts 1997, 75th Leg., ch. 1022, Sec. 79, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1150, Sec. 21, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 40, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 849, Sec. 5, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 268, Sec. 1.35, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.33, eff. September 1, 2007.



Section  262.202.  Identification Of Court Of Continuing, Exclusive Jurisdiction.

If at the conclusion of the full adversary hearing the court renders a temporary order, the governmental entity shall request identification of a court of continuing, exclusive jurisdiction as provided by Chapter 155.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.



Section  262.203.  Transfer Of Suit.

(a) On the motion of a party or the court's own motion, if applicable, the court that rendered the temporary order shall in accordance with procedures provided by Chapter 155:

(1)  transfer the suit to the court of continuing, exclusive jurisdiction, if any;

(2)  if grounds exist for mandatory transfer from the court of continuing, exclusive jurisdiction under Section 155.201, order transfer of the suit from that court; or

(3)  if grounds exist for transfer based on improper venue, order transfer of the suit to the court having venue of the suit under Chapter 103.

(b)  Notwithstanding Section 155.204, a motion to transfer relating to a suit filed under this chapter may be filed separately from the petition and is timely if filed while the case is pending.

(c)  Notwithstanding Sections 6.407 and 103.002, a court exercising jurisdiction under this chapter is not required to transfer the suit to a court in which a parent has filed a suit for dissolution of marriage before a final order for the protection of the child has been rendered under Subchapter E, Chapter 263.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 575, Sec. 22, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1150, Sec. 22, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 41, eff. Sept. 1, 1999.



Section  262.204.  Temporary Order In Effect Until Superseded.

(a) A temporary order rendered under this chapter is valid and enforceable until properly superseded by a court with jurisdiction to do so.

(b)  A court to which the suit has been transferred may enforce by contempt or otherwise a temporary order properly issued under this chapter.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.



Section  262.205.  Hearing When Child Not In Possession Of Governmental Entity. (a)

In a suit requesting possession of a child after notice and hearing, the court may render a temporary restraining order as provided by Section 105.001. The suit shall be promptly set for hearing.

(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 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.

(c)  If the court orders removal of the child from the child's home, the court shall:

(1)  issue an appropriate temporary order under Chapter 105; and

(2)  inform each parent in open court that parental and custodial rights and duties may be subject to restriction or termination unless the parent is willing and able to provide a safe environment for the child.

(d)  If citation by publication is required for a parent or alleged or probable father in an action under this chapter because the location of the person is unknown, the court may render a temporary order without regard to whether notice of the citation has been published.

(e)  Unless it is not in the best interest of the child, the court shall place a child who has been removed under this section with:

(1)  the child's noncustodial parent; or

(2)  another relative of the child if placement with the noncustodial parent is inappropriate.

(f)  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 for the child under Title 4.

Added by Acts 1999, 76th Leg., ch. 1150, Sec. 23, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 42, eff. Sept. 1, 1999.



Subchapter D. Emergency Possession Of Certain Abandoned Children

Section  262.301.  Definitions.

In this chapter:

(1)  "Designated emergency infant care provider" means:

(A)  an emergency medical services provider;

(B)  a hospital; or

(C)  a child-placing agency licensed by the Department of Protective and Regulatory Services under Chapter 42, Human Resources Code, that:

(i)  agrees to act as a designated emergency infant care provider under this subchapter; and

(ii)  has on staff a person who is licensed as a registered nurse under Chapter 301, Occupations Code, or who provides emergency medical services under Chapter 773, Health and Safety Code, and who will examine and provide emergency medical services to a child taken into possession by the agency under this subchapter.

(2)  "Emergency medical services provider" has the meaning assigned that term by Section 773.003, Health and Safety Code.

Amended by Acts 2001, 77th Leg., ch. 809, Sec. 4, eff. Sept. 1, 2001.



Section  262.302.  Accepting Possession Of Certain Abandoned Children.

(a) A designated emergency infant care provider shall, without a court order, take possession of a child who appears to be 60 days old or younger if the child is voluntarily delivered to the provider by the child's parent and the parent did not express an intent to return for the child.

(b)  A designated emergency infant care provider who takes possession of a child under this section has no legal duty to detain or pursue the parent and may not do so unless the child appears to have been abused or neglected. The designated emergency infant care provider has no legal duty to ascertain the parent's identity and the parent may remain anonymous. However, the parent may be given a form for voluntary disclosure of the child's medical facts and history.

(c)  A designated emergency infant care provider who takes possession of a child under this section shall perform any act necessary to protect the physical health or safety of the child. The designated emergency infant care provider is not liable for damages related to the provider's taking possession of, examining, or treating the child, except for damages related to the provider's negligence.

Amended by Acts 2001, 77th Leg., ch. 809, Sec. 4, eff. Sept. 1, 2001.



Section  262.303.  Notification Of Possession Of Abandoned Child.

(a) Not later than the close of the first business day after the date on which a designated emergency infant care provider takes possession of a child under Section 262.302, the provider shall notify the Department of Protective and Regulatory Services that the provider has taken possession of the child.

(b)  The department shall assume the care, control, and custody of the child immediately on receipt of notice under Subsection (a).

Amended by Acts 2001, 77th Leg., ch. 809, Sec. 4, eff. Sept. 1, 2001.



Section  262.304.  Filing Petition After Accepting Possession Of Abandoned Child.

A child for whom the Department of Protective and Regulatory Services assumes care, control, and custody under Section 262.303 shall be treated as a child taken into possession without a court order, and the department shall take action as required by Section 262.105 with regard to the child.

Amended by Acts 2001, 77th Leg., ch. 809, Sec. 4, eff. Sept. 1, 2001.



Section  262.305.  Report To Law Enforcement Agency; Investigation.

(a) Immediately after assuming care, control, and custody of a child under Section 262.303, the Department of Protective and Regulatory Services shall report the child to appropriate state and local law enforcement agencies as a potential missing child.

(b)  A law enforcement agency that receives a report under Subsection (a) shall investigate whether the child is reported as missing.

Added by Acts 2001, 77th Leg., ch. 809, Sec. 4, eff. Sept. 1, 2001.



Section  262.306.  Notice.

Each designated emergency infant care provider shall post in a conspicuous location a notice stating that the provider is a designated emergency infant care provider location and will accept possession of a child in accordance with this subchapter.

Added by Acts 2001, 77th Leg., ch. 809, Sec. 4, eff. Sept. 1, 2001.



Section  262.307.  Reimbursement For Care Of Abandoned Child.

The department shall reimburse a designated emergency infant care provider that takes possession of a child under Section 262.302 for the cost to the provider of assuming the care, control, and custody of the child.

Added by Acts 2001, 77th Leg., ch. 809, Sec. 4, eff. Sept. 1, 2001.



Section 262.308.  Confidentiality.

(a) All identifying information, documentation, or other records regarding a person who voluntarily delivers a child to a designated emergency infant care provider under this subchapter is confidential and not subject to release to any individual or entity except as provided by Subsection (b).

(b)  Any pleading or other document filed with a court under this subchapter is confidential, is not public information for purposes of Chapter 552, Government Code, and may not be released to a person other than to a party in a suit regarding the child, the party's attorney, or an attorney ad litem or guardian ad litem appointed in the suit.

(c)  In a suit concerning a child for whom the Department of Family and Protective Services assumes care, control, and custody under this subchapter, the court shall close the hearing to the public unless the court finds that the interests of the child or the public would be better served by opening the hearing to the public.

(d)  Unless the disclosure, receipt, or use is permitted by this section, a person commits an offense if the person knowingly discloses, receives, uses, or permits the use of information derived from records or files described by this section or knowingly discloses identifying information concerning a person who voluntarily delivers a child to a designated emergency infant care provider.  An offense under this subsection is a Class B misdemeanor.

Added by Acts 2005, 79th Leg., Ch. 620, Sec. 1, eff. September 1, 2005.



Section 262.309.  Search For Relatives Not Required.

The Department of Family and Protective Services is not required to conduct a search for the relatives of a child for whom the department assumes care, control, and custody under this subchapter.

Added by Acts 2005, 79th Leg., Ch. 620, Sec. 1, eff. September 1, 2005.


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