CHAPTER 262. PROCEDURES IN SUIT BY GOVERNMENTAL ENTITY TO PROTECT HEALTH AND SAFETY OF CHILD - Texas Statutes

FAMILY CODE

TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE

PARENT-CHILD RELATIONSHIP

SUBTITLE E. PROTECTION OF THE CHILD

CHAPTER 262. PROCEDURES IN SUIT BY GOVERNMENTAL ENTITY TO PROTECT

HEALTH AND SAFETY OF CHILD

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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

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 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

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 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.

Sec. 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

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.