Family Code Flashcards
Non-Parental consent to treatment for medical, dental, psychological, surgical treatment
- grandparent
- adult sibling
- aunt or uncle
- school (enrolled) w/ written consent
- adult in control with written consent
- court with jurisdiction
- adult responsible under jur. of court
- peace officer w/ lawful custody - immediate medical
- TYC - contact guardian and they did not refuse
NOT IMMUNIZATIONS!
Consent Form
What info needs to be on it?
In writing and signed by person giving consent
- name of child
- name of/or both parents
- name of person giving consent with relationship
- nature of treatment
- date of treatment
What information needs to be on the consent form?
- Name of Child
- Name of BOTH parents
- Name of person giving consent w/relationship
- Nature of treatment
- Date of treatment
When can a child give consent?
- Parents on active duty
- 16 years old, runs away from parents, manages own money
- Consent for infection disease (AIDS, communicable, contageous)
- Unmarried and pregnant OTHER THAN abortion
- Drug addiction treatment
- Unmarried and parent of a child in their custody (for the child)
- Parent in TDC
- Unmarried and pregnant
Examination w/o Consent of Abuse or Neglect
- Doctor, Dentist or Psychologist having grounds to believe that a child’s physical or mental condition has been adversely affected due to abuse or neglect may examine a child without any consent.
May include x-rays, blood tests, photos and penetration of tissue.
No examination allowed
Dr cannot examine a child without consent if:
- 16 or older & refuses
- For when consent is prohibited by court order
Define medical professional
Doctor, nurse, P.A. Or EMT
Investigations 261.301
CPS shall make a prompt & thorough investigation of a report of child abuse or neglect by a person that is responsible for a child’s care, custody or welfare:
- Respond immediately to a report of abuse that involves circumstances in which DEATH or SBI will occur unless the dept interviews
- Respond within 24 hours to a report of abuse of neglect that is proscribed the HIGHEST authority
- Respond within 72 hours, if assigned the SECOND highest authority
Conduct of Investigation
- Visit to house
- School
- Any other place
- Can include exams (medical, psych)
- Can transport but CPS should attempt to notify parents
- Can interview w/parents, other children (exam of other children)
- Interview shall be video & audio taped.
M-B if person (parent) shows up & tried to interfere with investigation.
Conducting CPS Investigation
- Visit to house
- School
- Any other place
- Can include exams (medical, psych)
- Can transport but CPS should attempt to notify parents.
- Can interview w/parents, other children (exam of other children)
- Interview shall be video & audio taped
M-B if any person shows up & tries to interfere with the investigation
Interference w/ Investigation 261.3032
Person moves, temporary or permanent, during the course of an investigation in busy without notifying CPS
M-B
Anonymous Report 261.304
- Conduct preliminary investigation
- May include home visit
- Need evidence to corroborate the report of abuse or CPS may not conduct the thorough investigation required by this chapter.
Accepting a Child 262.004 (voluntary surrender)
A law enforcement officer or juvenile probation officer may take possession of a child w/o a court order on the voluntary delivery of the child by a parent.
After taking the child, they shall cause a suit to be filed no later than the 60th day.
Abandoned Children 262.008
CPS may assume care & custody of a child:
- Abandoned w/o ID
- Who’s ID cannot be learned by reasonable search
CPS shall immediately file suit for a termination of parent-child relationship
Removal of alleged perpetrator
- CPS conducts and investigation
- if child is safe in home w/others, CPS shall get a court order for a temporary restraining order to remove the perpetrator
- Good for 14 days
M-A if person in home does not protect child
M-A for perp to return
F3 if there was a prior conviction
Taking a child in emergency w/o court order
- CPS
- Police
- Juvenile Probation
- May take immediate possession of a child W/o court order:
- Immediate danger to child
- Info of another that is corroborated by personal knowledge that there is immediate danger.
- Either personal or info from another that is corroborated that sex abuse is taking place.
- Using a cont substance and it causes an immediate danger to the child
- Making meth at the location
Release of child by LE or Juvenile Probation
Police
Juvenile Probation
If they take a child w/o court order, may release to:
- CPS
- Child placement agency
- Any person authorized by law to take the child.
Petition after child is taken in emergency 262.105
When a child is take w/o a court order, CPS or person shall:
- File a suit affecting the parent-child relationship
- request court appoint an attorney ad litem for child
- Request a hearing no later than the 1st working day after the child is taken. 13 days @ longest or child will be returned
If CPS files suit terminating the relationship, suit will be filed no later than the 45th day
False Report of Child Abuse
SJF unless there is a previous conviction, then it is a F3
Civil penalty of $1000.00 to attorney general
Failure to report abuse
M-A
SJF if victim is retarded living in state home & actor knew victim suffered SBI
Consent to counseling
A child may consent to counseling:
- Suicide prevention
- Chemical addiction
- Sexual, physical or emotional abuse
A doctor, social worker or counselor that believes that a child has been sexually, physically or emotionally abused, is thinking of suicide or has a drug problem can:
- Counsel the child w/o consent of the child’s parents.
Name change order
It’s in the interest of the person & of the public
Felony or sex offender can if:
- Certificate of Discharge for at least 2 years, or
- Off of probation for at least 2 years, or
- Been pardoned
Sex offender must notify the Chief of Police or Sheriff that has jurisdiction & provide proof to the court.
Name change of Adult
- Name & place of residence
- New name requested
- Reason for change
- Whether felony convictions or sex offender
- DPS or FBI fingerprints on file needed
- Name, sex, race, DOB, DL for 10 years SSN, FBI or State ID number of known
- Offenses charged above M-C
- Case #, Court # if warrant was issued above M-C
Parental Liability
Parent is liable for property damage caused by:
- Negligent conduct of child if it is attributed to negligent failure of the parent
- Willful and malicious conduct of a child
10 years to 17 years old
Authorization Agreement
Which relatives can sign
Between Parent and Relative
- Grandparent
- Adult sibling
- Adult aunt or uncle
Parent or both parents enter into an authorization agreement to authorize:
- Medical
- Dental
- Psychological
- Surgical
- Immunizations
- Medical and Car insurance
- Enrollment in school or day care
- Sports enrollment
- D.L.
- Job
- Public benefits
NO ABORTIONS
Contents of Authorization Agreement
- Name and signature of relative
- Relationship to child
- Relative’s address and phone number
- Same info for parent or parents
- Statement giving authorization and agreement of both
- Statement that no court or other has jurisdiction
- No custody or court issues
- Court gave written approval with :
- county
- # of court
- Cause # - Change of address for either party
Authorization Agreement warnings and disclosures
Agreement is void unless a copy is mailed to a parent that was not a party to the agreement and that parent’s rights have not been terminated.
no later than 10th day after signed
No right of a relative to agree to an abortion
Execution of authorization agreement
Signed and notarized
Must have written order if there is pending litigation, custody, etc.
Termination of authorization agreement
If either party terminated in writing:
- Written notice to other
- Files with County Clerk’s Office
- child resides
- child resided at time of A.E.
- relative resides, and
- clerk of each court for litigation, etc.
Either parent can void w/o the other’s consent
M-B for false statements, duress or misrepresentations
Family Violence
- Assault or Assault by Threat against a family member or member of household.
- Abuse (261.001)
- Dating Violence (has had a dating relationship)
Who may file for a Protective Order?
- Adult member of family or household
- Dating Violence - Adult member of dating relationship
- Any adult may file for PO to protect a child from FV
- Prosecuting Attorney
- Dept of Protective and Regulatory Services (CPS)
Protective Orders - how long are they valid
Up to 2 years
If time period is not stated, must wat 1 year before filing motion
If it expires while in prison, good for 1 more year after release.
More Protective Order
Hearing - unless reversed by applicant, court has 14 days to set a hearing
IF a PO applies to each person, a separate PO shall be issued to each, not one covering husband and wife.
If person is required to undergo counseling as required, that person has 60 days to file an affidavit that they will begin class.
Ex Parte Order
Can be issued immediately if there is clear danger
Good for 20 days and upon request can be extended an additional 20 days
Any individual affected can file a motion to vacate the order. ASAP for date of hearing
Exclusion from residence:
Applicant must have lived there within 30 days of application. The person excluded committed FV within 30 days of application.
Define “Dating Relationship”
Relationship between two people who have or had a continuing relationship of a romantic or intimate nature based on:
- Length of relationship
- Nature of relationship
- Frequency and type of interaction
Define “Family”
Dating Relationship - Romatic or intimate (71.00213)
Persons related by blood or marriage (71.003)
Former Spouses (71.003)
Parents of the same child (71.003)
Foster Child & Foster Parent (living together or not)
Define “Household”
From (71.005)
Unit with persons living together without regard to whether they are related.
Define “member of a household”
From (71.006)
Includes a person who previously lived in a household.
Define “Consanguinity” (573.022)
Two people are related if:
- One is a descendant of the other
- They share a common ancestor
Define “Affinity”
Two people are related to each other if:
- They are married to each other; or
- The spouse of one is related by consanguinity to the other In-laws
- Divorce or death of a spouse ends relationships of affinity created by that marriage unless a child of the marriage is living, in which case the marriage is considered to continue as long as the child lives.
Domestic Relations Office may obtain records from:
- DPS
- Texas Welfare Comission
- National Directory of New Hires
- State Case Registry
- Secretary of State
- from registered voter info
Parents Right and Duties
- Have physical possession, religious training, designate residence
- Care, control, protection & reasonable discipline of child
- Duty to support the child: medical, food, clothing, school
- Manage child’s estate
- Right to services and earnings
- Right to consent to marriage, armed forces, medical
- Right to represent child in legal action
- Child support
Suspension of Texas DL (232.003)
3 months behind in child support
Hearing and motion to stay must be files within 20 days
Define “Abuse” (261.001)
- Mental or emotional injury (impairs growth or function)
2.Cause or permit child to be in situation causing #1 - Physical injury resulting in substantial harm
- Failure to prevent another’s actions resulting in #2
- Sexual conduct including sex offenses in penal code
- Failure to prevent sex conduct harmful to child
- Compelling or encouraging child to engage in sex conduct
- Cause, permit, encourage or allow obscene pornographic filming of child
- Current use of a C/S by a person that cause mental or emotional injury to a child
- Cause, permit a child to use a C/S
- Cause, permit, encourage, engage or allow a sexual performance by a child.
Define “Neglect” (261.001)
Leaving a child in a situation where child would be exposed to substantial risk of harm - physically or emotionally w/o arranging for care and demonstrating an intent not to return by a parent.
False report of child abuse
Lies during custody suit about abuse
civil penalty up to $500
Transfer from Criminal Court
Child charged with an offense other than:
- Perjury
- Traffic Violation
- Class C fine only
- Municipal Ordinace (unless already transferred under 54.02)
these all stay in original court
If there is a pending complaint of a misdemeanor other than traffic
Waive jurisdiction if 2 or more convictions.
Admissibility of a statement of a child - Written
Statement can be made in writing after Miranda while:
- Child is in detention facility or other confinement
- In custody of an officer
- During or after interrogation of the child by an officer if child is in protective services and has broken penal code
Admissibility of a statement of a child - Oral
Made orally and recorded by recording device and after receiving Miranda AND child waives rights:
- Recording is good and not altered
- Each voice is identified
- Not later than 20 days lawyer gets a copy
Right to assistance of an attorney (51.10)
A child’s right to representation by attorney SHALL NOT be waived in:
- Hearing for transfer to criminal court
- Adjudication hearing
- Disposition hearing
- Hearing prior to commitment to TYC
- Hearings for child with mental illness
Attorney shall have 10 days to prepare for:
1. Any adjudication hearing
2. Transfer hearing
Admissability of statement of child - Miranda
Under section (d) the warning must be as follows:
- Magistrate reads Miranda rights
- Child must sign statement w/o an officer or prosecutor present
- Signed by magistrate
can have a bailiff, but no gun visible
Juvenile Justice Code
Conduct indicating a need for supervision
- Misdemeanor offenses (fine only)
- School absence - 10 days in 6 month period, or 3+ days in 1 month
- Runaway (not married, divorced or widowed)
- Huffing
- Violating a court order
Juvenile Justice Code
Delinquent Conduct (non-traffic)
- Conduct punishable by prison or jail
- Conduct violating a court order constituting contempt of court
- DWI
- DUI - Minor 3 or more times
Detention Hearing 54.01
A referee can conduct the hearing
If an objection is made, judge can hold hearing within 24 hours
Juv judge shall adopt, reject not late than the next working day after the judge receives the recommendation
If de novo is conducted w/o attorney, he must make a request no later than 10th working day.
Court must find P.C. and make finding within 48 hours including weekends and holidays.
If child is in County jail - 24 hours EXCLUDING weekends and holidays
Child must be released within 30 working days for capital felony, First Deg Felony, Agg C/S felony.
Released within 15 working days for others if no petition filed.
Taking Child Into Custody, Issuance of Warnings 52.01
Child may be taken into custody by:
- Order of juvenile court
- Pursuant to laws of arrest
- By LEO if there is PC
A. Broken penal law
B. Delinquent conduct or child in need of supervision
C. Probation violation - Probation officer
A. Violated probation conditions
B. Violated conditions of release - Directive to apprehend (warrant)
Time Set For Hearing 53.05
If child is in custody or will be in custody
Hearing will not be later than 10 days after the day the petition was filed.
Service of Summons 53.07
Person in this state and they are found:
- must be 2 days before adjudication hearing
Person in this state, NOT found, but address is good - mail certified copy 5 days before hearing.
Outside of state and address is good - certified mail w/return receipt 5 days before hearing
Detention Hearing 54.01
If child is not released, a hearing will be held no later than 2nd working day
Child shall be released unless he is not going to return.
No statement made at hearing can be used at another hearing
Initial hearing cannot be waived
Subsequent detention orders will be no more than 10 days, 15 days if child is not in a certified detention facility.
Child can be detained as long as 10 days before hearing if they are in a shelter waiting for transportation and judge signs
Jurisdiction 51.04
Delinquent conduct or child in need of supervision
Juvenile board designates 1 or more courts
- if county court is selected, must have one other court
A. No jurisdiction over violent or habitual offenders - If judge of court is NOT an attorney, 1 other court must be designated, MUST be a juvenile court designated for each county.
- If judge of unavailable, ANY magistrate may make a determination under 53.02(f) - firearm used or exhibited during delinquent conduct, SHALL be detained until released by juvenile court judge.
Referee - attorney appointed to make determinations or conduct hearings 53.02(f)
County < 100,000 - Juvenile court has concurrent jurisdiction w/ JP and municipal court for skipping school 25.094 Education Code
Venue 51.06
Proceedings shall be conducted :
- County where it happened
- Where child currently lives but only if child is currently on probation there
- Cannot tell where crime occurred
- County where child lives agrees in writing
Writ of Habias Corpus for person in TYC hall be in country where the entered judgement of commitment is located
Transfer to Another County for Dispostion 51.07
Juvenile court may transfer case to county where child lives for disposition of the case.
Consent by the county court where the child lives is not required
Disposition without referral to court - 52.03
Juvenile case can be disposed w/o referral if:
- Guidelines for disposition have been adopted by Juv. Board
- Disposition is authorized by those guidelines
- Officer makes written report
No disposition authorized in this section may involve the following:
- Keeping the child in L.E. Custody
- Reporting of child to LEO, Agency or other Agency
Disposition can authorize:
- Referral of child to agency other than Juv. Court
- Brief conference w.child and parents, guardians, etc.
- Referral of child and parents for services
Dispositions must be reported annually.
First Offender Program 52.031
Juv. Board can establish a 1st offender program for referrals and dispositions of:
- Child in need of supervision
- Delinquent conduct
NOT for:
1. F1, F2 or F3
2. Agg controlled substance felony (man/del, large amounts)
3. Capital felony
4. SJF or misdemeanor involving violence to a person or use/possession of a firearm, illegal knife, club or prohibited weapon.
Juv. Board will designate 1 or more officers and agencies (LE) to process a child under this program.
First Offender Program 52.031 - Continued
Officers can refer a child to designated office or agency in lieu of referral to Juv. Court if:
- No adjudication for previous delinquent conduct
- It complies with guidelines
- officer makes a report
- Child cannot be in LE custody
- Parents are notified of referral
First Offender Program 52.031 - Resolutions
Dispositions may include:
- Voluntary restitutions to victims
- Voluntary community service
- Education, vocational training, counseling or rehab
- Periodic reporting to the LE agency or Officer once case is closed.
Child cannot be referred to the Juv Court unless child completes program but is taken back into custody for an offense within 90 days
Child shall be referred if:
- Child does not complete the program
- Child, parent terminates participation
Statements made by child to a person giving advice or supervision about the program may not be used against the child in court.
Referral to Juvenile Court; Notice to Parents (52.04)
Study
The following must accompany referral of child to Juv Board:
- All info in possession of the Agency pertaining to: child’s name, address, name and address of parent, name and address of witnesses and where the child is
- Complete statement about illegal conduct
- When applicable, statement concerning info about custody
- If LE - all prior contacts w/child by that agency
Juv Board may refer cases to LE agency for investigation.
If board refers case to DA or CA for investigation, the agency must first transfer case to juvenile probation for stats. Only juvenile probation has 3 business days to sent it back to the DA or CA to complete investigation.
Punishment for contempt
County jail no longer than 6 months, $500 fine or both
Sanction Level 7 (59.010)
Juvenile Dept may certify and transfer sentence to TYC under Determinate Sentence:
40 years, 20 years, 10 years
Structured residential program: 12 months to 10 years
Sanction Level 6 59.009
Commit Child to TYC or:
1. Residential program for 9-24 months
Require patrols officer to closely monitor for no less than 6 months
TYC may discharge when done or reach 19th birthday
Sanction Level 5 59.008
As a condition of probation:
- Place child in post-adjudication secure correctional
A. 6-12 months
B. Continue probation after sentence
Transfer of Probation (51.071)
Juvenile Court or Probation Department may NOT engage in courtesy supervision with another jurisdiction
Exception 51.075 - Adjoining counties if child lives, works, etc in one county and is on probation in another.
Waiver of rights of a Child
Rights may be waived in proceedings is:
- Made by child and attorney for child
- Both are informed of consequences and are informed of rights and understanding them
- Voluntary
- Made in writing or in recorded court proceedings
Sanction Levels
Level 1 - Child in need of Super, M/A or M/B
Level 2 - Huffing or Expelled student or M/A or M/B
Level 3 - Misd w/firearm, SJF or F3
Level 4 - F2
Level 5 - F1
Level 6 - F1 w/ Deadly weapon or SBI, Agg C/S, Capital
Level 7 - Same as 6, with habitual felon or transferred to criminal court (big boy court)
Sanction Level 1 (59.004)
- Counseling
- Possible progressive sanctions
- Release child to parents
Sanction Level 2 (59.005)
- May place the child on deferred prosecution for 3 months
- Make restitution or community service restitution
- Impose additional conditions of probation
Sanction Level 3 (59.006)
- Place child on probation for up to 6 months
- Restitution
- Require probation officer to closely monitor.
Sanction Level 4 (59.9007)
- Probation
A. 3-12 months intensive services
B. Confine after the above - Restitution
- Same as levels 1, 2, 3
Deferred Prosecution (53.03)
Advise parties no longer than 6 months
Maximum fee of $15.00
Prosecutor may defer for any child if applicable
Probation officer can only if prosecutor consents in writing
Child cannot be on deferred for a combined period longer than 1 year
Not for DWI
Juvenile Habitual Felony Conduct
A felony (not SJF) if:
- 2 previous delinquent conduct felonies and 2nd felony has to be after the 1st
- All appeals are over
Any offense before 1996 can’t be used under this section
Admissibility of Statement by Child 51.095 custody
You can take a statement of a child if they are not in custody
Or
W/o regard to whether statement is taken while child in custody, the statement is voluntary and has a bearing on the credibility of the child as a witness.
Admissibility of Statement of a Child - Continued 1
- Res Gestae statements of delinquent conduct or conduct indicating need for supervision
- Statement is made in:A. Open court at adjudication hearing
B. Before grand jury considering a petition under section 53.045 (violent or habitual offenders)
C. Preliminary hearing concerning child held in compliance.
Admissibility of Statement by Child - Continued 2
Statement is made orally and child says something or makes a statement of facts that are found to be true and establishes guilt of the child.
I.E. location of stolen property
Admissibility of Statement of a Child - Written
- Statement is in writing while child is:A. In a detention facility
B. In custody of an officer, or
C. During or after interrogation by and officer the child is in CPS and suspected of breaking penal law. - Magistrate reads the Miranda warning to the child
- Child signs statement in front of magistrate w/o officer or prosecutor present
- Voluntary and child understands statement and magistrate signs.
Detention Hearing
- must be by 2nd working day
- Request for shelter in detention can delay detention hearing for 10 days if voluntarily executed next working day after arrest
- De Novo detention hearing - new attorney has 10 days and the hearing I must be no later than 2nd working day. Judge or referee has 48 hours to make a PC Finding.
- service of summons - 2 days in state and found, 5 days for others
Writ of Attachment (53.08)
For a person who violates an order to bring a juvenile to a hearing.
Custodian
Adult with whom the child resides
Guardian
Person who, under court order, is the guardian of child or the public or private agency with whom the child has been placed by the court
Non Offender
A child subject to jurisdiction of the court under abuse, dependency or neglect statutes or is taken into custody for deportation out of the USA.
Non Secure Correctional Facility
A facility that accepts juveniles who are on probation
Parent
Mom and Dad of a child (does not include a parent whose rights have been terminated.)
Status Offender
Offense committed by a child that would not have been an offense if committed by an adult: truancy, runaway, etc.
Issuance of Warning and Notices
Law enforcement can issue warning notice in lieu of taking child into custody if:
- Guidelines for warning dispositions have been issued by the Dept where the officer works.
- Guidelines have been approved by the Juv. Board
- Disposition is authorized by guidelines
- warning notice ID’s child and conduct
- Warning notice is sent to parents after disposition
- Filed with LE Agency
Post-Adjudication Correctional Facilities
County - Judge of Juv Court and a majority of the Juv Board must inspect all facilities not run by TYC
Texas Juvenile Probation Commission shall also annually inspect all facilities not run by the TYC and report to juvenile judge
Place of Detention (51.12)
Child may be detained in:
- Juvenile processing office
- Place of non-secure custody
- Certified juvenile detention facility
A. Separated by sight and sound from adults - Secure detention facility
A. If a cert. Juvenile detention facility is not available - County jail or other facility if:
A. Not a certified detention facility; or,
B. Secure detention facility in the county
Attendance at Hearing
Each parent, custodian or managing and possessory conservator of a child MUST attend:
- Transfer to criminal court
- Adjudication hearing
- Disposition hearing
- Hearing to modify disposition
- Release or transfer hearing
Can be waived if:
A court waives attendance, person lives out of state, or parent is not conservator of a child.
May be punishable by fine no less than $100 or more than $1,000
Guardian Ad Litem
No parent or guardian present with child at a Juvenile court then a Guardian Ad Litem will be appointed to protect the interest of the child.
- Attorney for child can be guardian at litem
- Law enforcement, probation or employee of the juvenile court CANNOT be guardian ad litem
Juvenile Reporting Requirements
Age 10-16 for non traffic Class C, a report is required except:
- PI
- DC
- Non accident arrests
- City ordinance violations
- Class C thefts
Truancy - Juvenile Detention or CISD. Cannot be filed if ever married, divorced or widowed.
Runaway - a person at 17 years old should not be listed as a runaway unless, before they were 17, they were handled by the Juv Court. If never handled and 17, enter into TCIC/NCIC as missing person.
Release of Juveniles
Four options available:
- Field release
- Custodial arrest
- Protective custody (juvenile not facing charges)
- Medical facility - in custody and suffering from an illness or injury. Parent notified immediately.
Leaving a Child in a Vehicle (22.10)
More than 5 minutes
6 years and under
No attended by another child at least 14 years old
M/C
Juvenile Justice Code pertains to what ages?
Child 10-16 years old
