BILL ANALYSIS

C.S.S.B. 1064

By: Watson

Human Services

Committee Report (Substituted)

BACKGROUND AND PURPOSE

At times Department of Family and Protective Services (DFPS) investigations into reports of child abuse or neglect are hampered by the refusal of parents and others to provide needed information or access to the child. Texas law allows DFPS to obtain a court order to access the needed information or the child, but the process for obtaining a court order is not clearly specified. 

The lack of specificity in obtaining and issuing a court order often slows timely investigation. When good cause is shown, the law allows for a child to be interviewed and for the release of information or medical or mental examination records. However, "good cause shown" is not defined in the statute and there is little uniformity in how courts interpret the phrase. And some courts issue orders ex parte while others do not. An ex parte order is an order decided by a judge without requiring all parties to be present.

C.S.S.B. 1064 seeks to expedite the investigative process while establishing a clear judicial process for obtaining court orders that aid in abuse and neglect investigations.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.S.B. 1064 amends the Family Code to clarify that a court is authorized to render an order to assist DFPS in an investigation of a report of child abuse or neglect. The bill clarifies that if consent to transport a child for purposes relating to an interview or investigation cannot be obtained, the court having family law jurisdiction, including any associate judge designated by the court, on presentation of an application supported by an affidavit executed by an investigator or authorized representative of DFPS and finding that the affidavit is sufficient and without prior notice or a hearing, is authorized to order transport of the child, entrance to any place where the child may be, or both for an interview, examination, and investigation. The bill removes the clarification that the court is authorized to order the parent, the person responsible for the care of the children, or the person in charge of any place where the child may be to allow entrance for an interview, examination, and investigation for good cause shown to the court. The bill makes a conforming change to clarify that DFPS is authorized to seek a court order without filing suit in aid of such an investigation.

C.S.S.B. 1064 clarifies that if a parent or person responsible for the child's care does not consent to release of the child's prior medical, psychological, or psychiatric records, or to a medical, psychological, or psychiatric examination of the child that is requested by DFPS or a designated agency the court having family law jurisdiction, including any associate judge designated by the court, on presentation of an application supported by an affidavit executed by an investigator or authorized representative of DFPS and finding that the affidavit is sufficient and without prior notice or a hearing, is authorized to order the records to be released or the examination to be made at the times and places designated by the court. The bill removes the specification that the court is authorized to order the records to be released or the examinations to be made for good cause shown.

C.S.S.B. 1064 authorizes the court having family law jurisdiction, including any associate judge designated by the court, on presentation of an application supported by an affidavit executed by an investigator or authorized representative of DFPS, if a person having possession of records relating to a child that are relevant to an investigation does not consent to the release of the records on the request of DFPS or a designated agency, on finding that the affidavit is sufficient and without prior notice or a hearing, to order the records to be released at the time and place designated by the court. The bill requires an application for a court order in aid of an investigation, filed under its provisions to be accompanied by an affidavit executed by an investigator or authorized representative of DFPS that states facts sufficient to lead a person of ordinary prudence and caution to believe that, based on information available, a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect; the requested order is necessary to aid in the investigation; and there is a fair probability that allegations of abuse or neglect will be sustained if the order is issued and executed. The bill authorizes an application and supporting affidavit used to obtain a court order in aid of an investigation of a report of child abuse or neglect to be filed on any day, including Sunday.

C.S.S.B. 1064 authorizes a court to designate an associate judge to render an order in aid of an investigation under these provisions. The bill establishes that an order rendered by an associate judge is immediately effective without the ratification or signature of the court making the designation. The bill requires DFPS, as soon as practicable after executing the order or attempting to execute the order, as applicable, to file with the clerk of the court that rendered the order a written report stating the facts surrounding the execution of the order, including the date and time the order was executed and the name of the investigator or authorized representative executing the order or the reasons why DFPS was unable to execute the order. The bill requires a court issuing an order in aid of an investigation to keep a record of all the proceedings before the court, including the written report filed by DFPS relating to the execution of the order. The bill makes the record of proceedings, including any application and supporting affidavit presented to the court and any report regarding the execution of an order required to be filed with the court, confidential and authorizes the disclosure of such records only under a suit filed by DFPS to protect the health and safety of a child or as provided by provisions of law regarding confidentiality and disclosure of information in an investigation of child abuse or neglect.

C.S.S.B. 1064 requires DFPS, if filing a suit to protect the health and safety of a child, to include with its original petition a copy of the record of all the proceedings before the court, including an application and supporting affidavit for an order in aid of an investigation and any report relating to such an order. The bill requires DFPS, as soon as practicable after obtaining access to records of a child under a court order, to notify the child's parents or another person with legal custody of the child that DFPS has obtained the records. The bill establishes that access to a confidential record under investigation provisions does not constitute a waiver of confidentiality. The bill establishes that provisions relating to interference with an investigation of a report of child abuse or neglect do not prevent a court from requiring notice and a hearing before issuance of an order in aid of an investigation if the court determines that there is no immediate risk to the safety of the child and notice and a hearing are required to determine whether the requested access to persons, records, or places or to transport the child is necessary to aid in the investigation. The bill establishes that a court's denial of a request for an ex parte order does not prevent the issuance of a criminal warrant.

EFFECTIVE DATE

On passage, or, if the act does not receive the necessary vote, the act takes effect September 1, 2009.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.S.B. 1064 differs from the original by authorizing a court to render an order to assist the Department of Family and Protective Services (DFPS) in an investigation of a report of child abuse or neglect, rather than authorizing a court to enforce the right of DFPS to conduct such an investigation as in the original. The substitute differs from the original by authorizing a court having family law jurisdiction to render an order in aid of an investigation on presentation of an application supported by an affidavit executed by an investigator or authorized representative of DFPS, rather than requiring the court to issue such an order on presentation of the affidavit.    The substitute differs from the original by making conforming changes relating to the filing by DFPS of an application supported by the affidavit for a court order and the rendering of such an order by the court after a finding that the affidavit is sufficient. The substitute differs from the original by omitting reference to an agency or entity having possession of records relating to a child that are relevant to an investigation in provisions authorizing a court order for the release of those records because the agency or entity does not consent to the release on the request of DFPS or designated agency.

C.S.S.B. 1064 differs from the original by adding to the facts that an affidavit must state the fact that there is a fair probability that allegations of abuse or neglect will be sustained if the order is issued and executed. The substitute omits a provision included in the original establishing that an affidavit used to obtain a court order in aid of investigation is not a pleading, and may not be deemed a pleading, for purposes of the Texas Rules of Civil Procedure and adds a provision not in the original authorizing an application and supporting affidavit used to obtain such a court order to be filed on any day, including Sunday.

C.S.S.B. 1064 differs from the original by requiring DFPS, as soon as practicable after executing an order or attempting to execute the order, as applicable, to file with the clerk of the court that rendered the order a written report stating the facts surrounding the execution of the order or the reasons why DFPS was unable to execute the order and making related conforming changes, whereas the original requires an investigator or authorized representative executing an order issued under these provisions to promptly file with the court that issued the order a written report stating whether access was granted, an interview was conducted, or other action was taken in accordance with the order.

C.S.S.B. 1064 omits a provision included in the original requiring a court issuing an order in aid of an investigation to certify and deliver the record to the clerk of the court accompanied by all the original papers relating to the proceedings. The substitute differs from the original by clarifying that the record of proceedings in addition to being confidential under general provisions regarding confidentiality and disclosure of information in an investigation of a report of child abuse or neglect is confidential and may not be disclosed if DFPS files a suit to protect the health and safety of a child. The substitute differs from the original by changing what is required to be included by DFPS with an original petition for a suit to protect the health and safety of a child from any prelitigation affidavit, order, or report relating to an order in aid of investigation as in the original, to a copy of the record of all the proceedings before the court under investigations provisions, including an application and supporting affidavit for an order in aid of an investigation and any report relating to such an order.

C.S.S.B. 1064 differs from the original by adding to the conditions that may determine if a court requires notice and a hearing before issuing an order in aid of an investigation a determination that there is no immediate risk to the safety of the child and by adding a clarification to the condition that a determination based on whether the requested access to persons, records, or places is granted also include whether transport of the child is necessary to aid in the investigation. The substitute adds a provision not included in the original establishing that a court's denial of a request for an ex parte order under provisions regarding court orders and interference with an investigation of a report of child abuse or neglect does not prevent the issuance of a criminal warrant.

C.S.S.B. 1064 differs from the original in nonsubstantive ways by conforming to certain bill drafting conventions and making clarifying, technical, and conforming changes.