No child abuse registry listing without a final order

The text as introduced · 2,582 words

89R3472 DNC-F

By: Birdwell
S.B. No. 1196

A BILL TO BE ENTITLED

AN ACT

relating to the procedures and notice required before an

individual's name is added to the central child abuse or neglect

registry.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 261.002, Family Code, is amended by

amending Subsections (a) and (b) and adding Subsections (a-1),

(a-2), (b-1), (e), and (f) to read as follows:

(a) The department shall establish and maintain a central

registry of the names of individuals found [ by the department ] to

have abused or neglected a child.

(a-1) Except as provided by Subsection (a-2), the

department may not add the name of an individual to the central

registry maintained under this section unless a final order issued

by the State Office of Administrative Hearings after an

administrative hearing or by a court in a civil proceeding,

including a proceeding under Subchapter C or F, Chapter 262, or

Section 264.203, includes a finding that the individual abused or

neglected a child.

(a-2) The department may add an individual's name to the

central registry maintained under this section without a final

order that includes a finding that the individual abused or

neglected a child if the department determines that:

(1) the individual abandoned the child without

identification or a means for identifying the child;

(2) a child of the individual is a victim of serious

bodily injury or sexual abuse inflicted by the individual or by

another person with the individual's consent;

(3) the individual has engaged in conduct against a

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 20A.02(a)(7) or (8) (trafficking of

persons);

(E) Section 21.02 (continuous sexual abuse of

young child or disabled individual);

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

(G) Section 22.011 (sexual assault);

(H) Section 22.02 (aggravated assault);

(I) Section 22.021 (aggravated sexual assault);

(J) Section 22.04 (injury to a child, elderly

individual, or disabled individual);

(K) Section 22.041 (abandoning or endangering

child);

(L) Section 25.02 (prohibited sexual conduct);

(M) Section 43.05(a)(2) (compelling

prostitution);

(N) Section 43.25 (sexual performance by a

child); or

(O) Section 43.26 (possession or promotion of

child pornography);

(4) the individual 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 individual has been convicted for:

(A) the murder of another child 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

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 Paragraph (A) or (B); or

(D) the felony assault of a child that resulted

in serious bodily injury to the child or another child of the

parent; or

(6) the individual is required under any state or

federal law to register with a sex offender registry.

(b) The department may not find that an individual abused or

neglected a child [ executive commissioner shall adopt rules

necessary to carry out this section. The rules shall:

[ (1) prohibit the department from making a finding of

abuse or neglect against a person ] in a case in which the department

is named managing conservator of a child who has a severe emotional

disturbance only because the child's family is unable to obtain

mental health services for the child . The department shall [ ;

[ (2) ] establish guidelines for reviewing the records in

the registry and removing those records in which the department was

named managing conservator of a child who has a severe emotional

disturbance only because the child's family was unable to obtain

mental health services for the child .

(b-1) The department shall: [ ; ]

(1) [ (3) require the department to ] remove an

individual's [ a person's ] name from the central registry maintained

under this section not later than the 10th business day after the

date the department receives notice that a finding of abuse and

neglect against the individual [ person ] is overturned in:

(A) an administrative review of the department's

determination or an appeal of the review conducted under Section

261.309(c);

(B) a review of the department's determination or

an appeal of the review conducted by the office of consumer affairs

of the department under department rules ; [ or ]

(C) a hearing or an appeal conducted by the State

Office of Administrative Hearings;

(D) an internal department review of the

department's determination conducted under Section 261.0023 while

an administrative hearing is pending; or

(E) an order by a county court at law, an

associate judge under Section 201.201, a district court, a court of

appeals, or the supreme court; and

(2) [ (4) require the department to ] update any

relevant department files to reflect an overturned finding of abuse

or neglect against an individual [ a person ] not later than the 10th

business day after the date the finding is overturned in a review,

hearing, or appeal described by Subdivision (1) [ (3) ].

(e) This section does not limit the ability of the Health

and Human Services Commission to access the department's records of

reports of child abuse or neglect to conduct a background check

under Section 42.056, Human Resources Code, or commission rules.

(f) The commissioner shall adopt rules necessary to carry

out this section, including rules to ensure substantial compliance

with this section.

SECTION 2. Subchapter A, Chapter 261, Family Code, is

amended by adding Sections 261.0021, 261.0022, and 261.0023 to read

as follows:

Sec. 261.0021. NOTICE BEFORE NAME OF INDIVIDUAL ADDED TO

CENTRAL REGISTRY. (a) If the department determines that an

individual has abused or neglected a child, the department shall,

not later than the 10th day after the date the determination is

made, provide written notice to the individual of the department's

prospective addition of the individual's name to the central

registry maintained under Section 261.002. The notice must

include:

(1) a clear statement describing the purposes and

scope of the registry;

(2) an explanation of the consequences of being listed

in the registry, including any possible negative impact on the

individual's ability to:

(A) obtain employment or certain licenses; and

(B) have future contact with children, including

any limitation on volunteering or involvement in school activities;

and

(3) information regarding the individual's right to

challenge inclusion of the individual's name in the registry,

including the procedures for challenging inclusion of the

individual's name in the registry through:

(A) an administrative review of the department's

determination or an appeal of the review conducted under Section

261.309(c);

(B) a review of the department's determination or

an appeal of the review conducted by the office of consumer affairs

of the department under department rules;

(C) a hearing or an appeal conducted by the State

Office of Administrative Hearings;

(D) an internal department review of the

department's determination conducted under Section 261.0023 while

an administrative hearing is pending; or

(E) an order by a county court at law, an

associate judge under Section 201.201, a district court, a court of

appeals, or the supreme court.

(b) The department may not add an individual's name to the

central registry:

(1) before the 31st day after the date the department

provides notice to the individual under this section;

(2) if the individual requests a hearing under Section

261.0022, before the conclusion of the hearing process; or

(3) if the department's determination that the

individual abused or neglected a child is overturned by a process

available to the individual and listed under Subsection (a)(3).

Sec. 261.0022. HEARING CONDUCTED BY STATE OFFICE OF

ADMINISTRATIVE HEARINGS. (a) Not later than the 30th day after the

date an individual receives notice under Section 261.0021, the

individual may request a hearing with the State Office of

Administrative Hearings to review the finding of abuse and neglect.

(b) If an individual requests a hearing under this section,

the department shall refer the individual's case to the State

Office of Administrative Hearings to hold the hearing.

(c) An administrative law judge of the State Office of

Administrative Hearings shall:

(1) conduct a hearing for a request under this section

in accordance with Chapter 2001, Government Code;

(2) make findings of fact and conclusions of law; and

(3) issue an order containing a final decision

regarding the abuse and neglect findings.

(d) Notice of the administrative law judge's order given to

the individual under Chapter 2001, Government Code, must include a

statement of the individual's right to judicial review of the

order.

(e) Not later than the 10th day after the date an order by an

administrative law judge affirming the department's determination

becomes final under Section 2001.144, Government Code, the

department shall add the individual's name to the central registry.

(f) If the individual seeks judicial review of the

administrative law judge's order, the order remains in effect

during the pendency of that appeal.

(g) An individual may not receive a hearing under this

section if the finding of abuse or neglect by the individual is

made:

(1) under Section 262.201, 262.406, or 264.203; or

(2) by a district or appellate court.

Sec. 261.0023. INTERNAL DEPARTMENT REVIEW. (a) If an

individual requests a hearing under Section 261.0022, the

department shall conduct an internal department review of the

findings while the administrative hearing is pending.

(b) The department by rule shall establish a process for

conducting an internal department review of a finding of abuse or

neglect of a child before the date of the administrative hearing.

(c) If the department determines in an internal department

review that the evidence does not support a finding of abuse or

neglect by a preponderance of the evidence, not later than the 10th

day after the date the department makes the determination the

department:

(1) shall notify the individual of the results of the

review;

(2) shall remove the case from the State Office of

Administrative Hearings docket; and

(3) may not add the individual's name to the central

registry.

(d) If the department determines in an internal department

review that the evidence supports a finding of abuse or neglect by a

preponderance of the evidence, the department shall, not later than

the 10th day after making the determination, notify the individual

of the results of the review and that the individual's case will

remain on the State Office of Administrative Hearings docket.

(e) Information and materials used or referred to in an

internal department review under this section, including case

records or other documents, are confidential and not subject to

disclosure under Chapter 552, Government Code.

SECTION 3. Section 261.005, Family Code, is amended to read

as follows:

Sec. 261.005. REFERENCE TO EXECUTIVE COMMISSIONER OR

COMMISSION. (a) Unless otherwise provided by a provision of this

chapter, in this chapter:

(1) a reference to the executive commissioner or the

executive commissioner of the Health and Human Services Commission

means the commissioner of the department; and

(2) a reference to the Health and Human Services

Commission means the department.

(b) This section does not apply to Section 261.002(e).

SECTION 4. Section 262.201, Family Code, is amended by

adding Subsection (h-1) to read as follows:

(h-1) A temporary order issued under Subsection (h) must

include, with regard to each parent, managing conservator,

possessory conservator, guardian, caretaker, or custodian entitled

to possession of the child, a determination by a preponderance of

the evidence:

(1) whether that individual engaged in conduct that

would constitute abuse or neglect under Section 261.001; and

(2) for an individual determined by the court to have

engaged in conduct that constitutes child abuse or neglect, a

finding listing the specific provisions of Section 261.001

applicable to the individual's conduct.

SECTION 5. Section 262.406, Family Code, is amended by

amending Subsection (a) and adding Subsection (a-1) to read as

follows:

(a) Except as provided by Subsection (d), at the conclusion

of the hearing in a suit filed under Section 262.404, the court

shall order the department to provide family preservation services

and to execute a family preservation services plan developed in

collaboration with the family of the child who is a candidate for

foster care if the court finds sufficient evidence to satisfy a

person of ordinary prudence and caution that:

(1) as to each parent, managing conservator, guardian,

or other member of the child's household:

(A) the individual engaged in conduct that would

constitute abuse or neglect under Section 261.001;

(B) the individual's acts or omissions present an

immediate risk of abuse or neglect to the child; or

(C) [ occurred or ] there is a [ substantial risk of

abuse or neglect or ] continuing danger to the child's physical

health or safety caused by an act or failure to act of the

individual [ parent, managing conservator, guardian, or other

member of the child's household ];

(2) family preservation services are necessary to

ensure the child's physical health or safety; and

(3) family preservation services are appropriate

based on the child's safety risk assessment and the child's family

assessment.

(a-1) If the court makes a finding under Subsection

(a)(1)(A), the court shall identify the specific parts of Section

261.001 that apply to the parent's, managing conservator's,

guardian's, or other member of the child's household's conduct.

SECTION 6. Section 264.203, Family Code, is amended by

amending Subsection (m) and adding Subsection (m-1) to read as

follows:

(m) At the conclusion of the hearing, the court shall deny

the petition unless the court finds sufficient evidence to satisfy

a person of ordinary prudence and caution that:

(1) as to each parent, managing conservator, guardian,

or other member of the child's household:

(A) the individual engaged in conduct that would

constitute abuse or neglect under Section 261.001;

(B) the individual's acts or omissions present an

immediate risk of abuse or neglect to the child; or

(C) [ has occurred or ] there is a [ substantial

risk of abuse or neglect or ] continuing danger to the physical

health or safety of the child caused by an act or failure to act of

the individual [ parent, managing conservator, guardian, or other

member of the child's household ]; and

(2) services are necessary to ensure the physical

health or safety of the child.

(m-1) If the court makes a finding under Subsection

(m)(1)(A), the court shall identify the specific parts of Section

261.001 that apply to the parent's, managing conservator's,

guardian's, or other member of the child's household's conduct.

SECTION 7. (a) The commissioner of the Department of Family

and Protective Services shall adopt the rules necessary to

implement the changes in law made by this Act.

(b) The changes in law made by this Act apply only to a

finding that an individual abused or neglected a child made on or

after the effective date of this Act. A finding made before that

date is governed by the law in effect on the date the finding was

made, and the former law is continued in effect for that purpose.

SECTION 8. This Act takes effect September 1, 2025.