Authorizations for Care of Child
A number of provisions in the Texas Family Code are available to nonparent caregivers providing care for children when their parents are unable to do so. The scope of authority provided under these provisions and the conditions necessary to invoke them vary considerably, and some of the provisions require court involvement while other do not.
Certain nonparents, including specified close relatives, are authorized by chapter 32 of the Code to consent to medical, dental, psychological, and surgical treatment of a child when the person having the right to consent cannot be contacted and has not given actual notice to the contrary. See Tex. Fam. Code § 32.001.
Under chapter 35 of the Code, a person who would be eligible under section 32.001 may seek a court order for temporary authorization to perform certain acts in caring for a child who has resided with the person for at least the preceding thirty days if the person lacks authority otherwise that would enable the person to provide necessary care for the child. Tex. Fam. Code §§ 35.001, 35.002. The authority available under this provision is substantially broader than merely consenting to treatment for the child. This procedure is discussed in part II. below.
Chapter 34 of the Code provides for an authorization agreement entered by the parents and an adult caregiver to provide temporary care for the child. See Tex. Fam. Code § 34.002. The scope of authority that may be provided by the agreement exceeds that available under the temporary authorization permitted under Code chapter 35. Court approval for execution of the agreement is necessary only in some circumstances, but the parties must observe strict requirements regarding the agreement. This procedure is discussed in part III. below.
Under chapter 35A of the Code, a child’s grandparent, adult sibling, or adult aunt or uncle who has had actual care, custody, and control of a child for the preceding six months may seek a court order for temporary authorization to consent to voluntary inpatient mental health services for the child. See Tex. Fam. Code §§ 35A.001, 32.001(a). This procedure is discussed in part IV. below.
[Sections 46.2 through 46.10 are reserved for expansion.]
II. Temporary Authorization for Care of Child
§ 46.11Temporary Authorization for Care of Child Generally
Chapter 35 of the Texas Family Code allows a person who meets the consent-by-nonparent requirements of Tex. Fam. Code § 32.001 to seek a court order requesting temporary authorization to consent for the care of a child if the child has resided with the person for at least the thirty days preceding the date the person files a petition with the court and the person doesn’t have an authorization agreement pursuant to chapter 34 of the Texas Family Code or other signed, written documentation from a parent, guardian, or conservator that enables the person to provide necessary care for the child. Tex. Fam. Code §§ 35.001, 35.002.
The court may authorize the petitioner to do any or all of the following for the necessary care of the child:
1.Consent to medical, dental, psychological, or surgical treatment and immunizations.
2.Execute authorization for release of information required by law for medical treatment or immunization.
3.Obtain and maintain any public benefit for the child.
4.Enroll the child in daycare or school.
5.Authorize participation in extracurricular and other activities.
6.Authorize or consent to any other care for the child essential to the child’s welfare.
Tex. Fam. Code § 35.005(d)(1)–(6).
A petition for temporary authorization for care of a child should be filed in the district court in the county in which the petitioner resides. Tex. Fam. Code § 35.002. The petition must be styled “ex parte” and be in the name of the child, and it must be verified by the petitioner. Tex. Fam. Code § 35.003(a)(1), (a)(2).
The petition must state the name, date of birth, and current physical address of the child and of the petitioner and the name and, if known, the current physical and mailing addresses of the child’s parents, conservators, or guardians. Tex. Fam. Code § 35.003(a)(3).
The petition must also describe the status and location of any court proceeding in Texas or another state with respect to the child. Tex. Fam. Code § 35.003(a)(4). If such a proceeding is identified in the petition, the petitioner must submit a copy of any court order that designates a conservator or guardian of the child. Tex. Fam. Code § 35.003(b).
Further, the petition must (1) describe the petitioner’s relationship to the child; (2) provide the dates during the preceding twelve months that the child has resided with the petitioner; (3) describe any service or action that the petitioner is unable to obtain or undertake on behalf of the child without authorization from the court; (4) state any reason that the petitioner is unable to obtain signed, written documentation from a parent, conservator, or guardian of the child; (5) contain a statement of the period for which the petitioner is requesting temporary authorization; and (6) contain a statement of any reason supporting the request for the temporary authorization. Tex. Fam. Code § 35.003(a)(5)–(10).
On receipt of a petition for temporary authorization for care of child, the court shall set a hearing. A copy of the petition and notice of hearing shall be delivered to the parent, conservator, or guardian of the child by personal service or by certified mail, return receipt requested, at the last known address of the parent, conservator, or guardian. Proof of service must be filed with the court at least three days before the hearing date. Tex. Fam. Code § 35.004.
The court may hear evidence relating to the child’s need for care by the petitioner, any other matter raised in the petition, and any objection or other testimony of the child’s parent, conservator, or guardian. Tex. Fam. Code § 35.005(a).
A temporary authorization order shall be granted if the court finds it is necessary for the child’s welfare and no objection is made by the child’s parent, conservator, or guardian. However, the court shall dismiss the petition without prejudice if a parent, conservator, or guardian of the child makes an objection. Tex. Fam. Code § 35.005(b).
A temporary authorization order should be granted only if the court finds by a preponderance of the evidence that the child does not have a parent, conservator, guardian, or other legal representative available to give the necessary consent. Tex. Fam. Code § 35.005(c).
§ 46.14Order for Temporary Authorization
An order granting temporary authorization under chapter 35 must state (1) the name and date of birth of the person with temporary authorization to care for the child; (2) the specific areas of authorization granted to the person; (3) that the order does not supersede any rights of a parent, conservator, or guardian as provided by court order; and (4) the expiration date of the temporary authorization order. Tex. Fam. Code § 35.005(e).
A copy of the order must be filed under the cause number in any court that has rendered a conservatorship or guardian order regarding the child and be sent to the last known address of the child’s parent, conservator, or guardian. Tex. Fam. Code § 35.005(f).
A temporary authorization order under chapter 35 does not affect the rights of any parent, conservator, or guardian regarding the care, custody, and control of the child; establish legal custody of the child or confer standing or a right of intervention in a SAPCR proceeding; or create a court of continuing exclusive jurisdiction. Tex. Fam. Code § 35.007(b)–(d).
A person who relies in good faith on a temporary authorization order is not subject to civil or criminal liability or professional disciplinary action. Tex. Fam. Code § 35.007(a).
§ 46.15Duration of Temporary Authorization
The temporary authorization order may be effective until a date certain, but no longer than one year from the date the order is granted unless the person petitions the court for renewal of the authorization order. Tex. Fam. Code § 35.005(d). A court may renew a temporary authorization order for a period of up to one additional year if the petitioner shows a continuing need for the order. Tex. Fam. Code § 35.006(a). The statute is silent as to how many times the temporary authorization order may be renewed.
§ 46.16Termination of Temporary Authorization
The petitioner or the child’s parent, conservator, or guardian may request the court to terminate the temporary authorization order at any time, and the court shall terminate the order on a finding that there is no longer a need for the order. Tex. Fam. Code § 35.006(b).
[Sections 46.17 through 46.20 are reserved for expansion.]
III. Authorization Agreements for Adult Caregivers
§ 46.21Authorization for Adult Caregivers Generally
Chapter 34 of the Texas Family Code provides for a child’s parent or parents to enter into an agreement with an adult caregiver authorizing the adult caregiver to perform certain acts with regard to the child. The provisions of chapter 34 are intended for situations in which a child is living with others because neither parent is able to care for the child.
For purposes of chapter 34, “parent” means the mother; a man presumed, legally determined, or adjudicated to be the father; a man who has acknowledged paternity; or an adoptive mother or father. Tex. Fam. Code §§ 34.0015(2), 101.024(a).
A parent or both parents of a child may enter into an authorization agreement with an adult caregiver to authorize the adult caregiver to perform the following acts in regard to the child:
1.To authorize medical, dental, psychological, or surgical treatment and immunization of the child, including executing any consents or authorizations for the release of information as required by law relating to the treatment or immunization.
2.To obtain and maintain health insurance coverage for the child and automobile insurance coverage for the child, if appropriate.
3.To enroll the child in a day-care program or preschool or in a public or private primary or secondary school.
4.To authorize the child to participate in age-appropriate extracurricular, civic, social, or recreational activities, including athletic activities.
5.To authorize the child to obtain a learner’s permit, driver’s license, or state-issued identification card.
6.To authorize employment of the child.
7.To apply for and receive public benefits on behalf of the child.
8.To obtain copies or originals of state-issued personal identification documents for the child, including the child’s birth certificate, and, to the extent authorized under federal law, copies or originals of federally issued personal identification documents for the child, including the child’s Social Security card.
A parent may enter into an authorization agreement with an adult caregiver with whom the child is placed under a parental child safety placement agreement approved by the Department of Family and Protective Services to allow the person to perform the foregoing acts with regard to the child during an investigation of abuse or neglect or while the Department is providing services to the parent. Tex. Fam. Code § 34.0021.
To the extent of any conflict or inconsistency between chapter 34 and any other law relating to eligibility requirements other than parental consent to obtain a service listed above, the other law controls. The authorization agreement does not confer on the adult caregiver the right to authorize the performance of an abortion on the child or the administration of emergency contraception to the child. Tex. Fam. Code § 34.002(b), (c).
Only one authorization agreement may be in effect for a child at any time. An authorization agreement executed while a prior authorization agreement remains in effect is void. Tex. Fam. Code § 34.002(d).
An authorization agreement executed under chapter 34 between a child’s parent and an adult caregiver does not subject the adult caregiver to any law or rule governing the licensing or regulation of a residential child-care facility under chapter 42 of the Human Resources Code. A child who is the subject of an authorization agreement is not considered to be placed in foster care, and the parties to the authorization agreement are not subject to any law or rule governing foster care providers. Tex. Fam. Code § 34.0022.
The authorization agreement must contain—
1.the following information from the adult caregiver: the name and signature of the adult caregiver, the adult caregiver’s relationship to the child, and the adult caregiver’s current physical address and telephone number or the best way to contact the adult caregiver;
2.the following information from the parent: the name and signature of the parent and the parent’s current address and telephone number or the best way to contact the parent;
3.the information in item 2. with respect to the other parent, if applicable;
4.a statement that the adult caregiver has been given authorization to perform the functions listed in Family Code section 34.002(a) as a result of a voluntary action of the parent and that the adult caregiver has voluntarily assumed the responsibility of performing those functions;
5.statements that neither the parent nor the adult caregiver has knowledge that a parent, guardian, custodian, licensed child-placing agency, or other authorized agency asserts any claim or authority inconsistent with the authorization agreement with regard to actual physical possession or care, custody, or control of the child;
6.statements that (a) to the best of the parent’s and adult caregiver’s knowledge there is no court order or pending suit affecting the parent-child relationship concerning the child; there is no pending litigation in any court concerning custody, possession, or placement of the child or access to or visitation with the child; and a court does not have continuing jurisdiction concerning the child; or (b) the court with continuing jurisdiction concerning the child has given written approval for the execution of the authorization agreement accompanied by the following information: the county in which the court is located, the number of the court, and the cause number in which the order was issued or the litigation is pending;
7.a statement that to the best of the parent’s and adult caregiver’s knowledge there is no current, valid authorization agreement regarding the child;
8.a statement that the authorization is made in conformance with Family Code chapter 34;
9.a statement that the parent and the adult caregiver understand that each party to the authorization agreement is required by law to immediately provide to each other party information regarding any change in the party’s address or contact information;
10.a statement by the parent that (a) indicates the authorization agreement is for a term of (i) six months from the date the parties enter into the agreement, which renews automatically for six-month terms unless the agreement is terminated as provided by Family Code section 34.008, or (ii) the time provided in the agreement with a specific expiration date earlier than six months after the date the parties enter into the agreement and (b) identifies the circumstances under which the authorization agreement may be terminated as provided by Family Code section 34.008 before the term of the agreement expires or continued beyond the term of the agreement by a court as provided by Family Code section 34.008(b); and
11.space for the signature and seal of a notary public.
The authorization agreement must contain the following warnings and disclosures:
1.That the authorization agreement is an important legal document.
2.That the parent and the adult caregiver must read all the warnings and disclosures before signing the authorization agreement.
3.That the persons signing the authorization agreement are not required to consult an attorney but are advised to do so.
4.That the parent’s rights as a parent may be adversely affected by placing or leaving the parent’s child with another person.
5.That the authorization agreement does not confer on the adult caregiver the rights of a managing or possessory conservator or legal guardian.
6.That a parent who is a party to the authorization agreement may terminate the agreement and resume custody, possession, care, and control of the child on demand and that at any time the parent may request the return of the child.
7.That failure by the adult caregiver to return the child to the parent immediately on request may have criminal and civil consequences.
8.That, under other applicable law, the adult caregiver may be liable for certain expenses relating to the child in the adult caregiver’s care but that the parent still retains the parental obligation to support the child.
9.That, in certain circumstances, the authorization agreement may not be entered into without written permission of the court.
10.That the authorization agreement may be terminated by certain court orders affecting the child.
11.That the authorization agreement does not supersede, invalidate, or terminate any prior authorization agreement regarding the child.
12.That the authorization agreement is void if a prior authorization agreement regarding the child is in effect and has not expired or been terminated.
13.That, except as provided by section 34.005(a–2) of the Family Code, the authorization agreement is void unless, not later than the tenth day after the date the agreement is signed, the parties mail to a parent who was not a party to the agreement at the parent’s last known address, if the parent is living and the parent’s parental rights have not been terminated (a) one copy of the agreement by certified mail, return receipt requested, or international registered mail, return receipt requested, as applicable, and (b) one copy of the agreement by first-class mail or international first-class mail, as applicable.
14.That the authorization agreement does not confer on an adult caregiver of the child the right to authorize the performance of an abortion on the child or the administration of emergency contraception to the child.
The authorization agreement must be signed and sworn to before a notary public by the parent or parents and the adult caregiver. Tex. Fam. Code § 34.004(a).
A parent may not execute an authorization agreement without a written order by the appropriate court if there is a court order or pending suit affecting the parent-child relationship concerning the child; if there is pending litigation in any court concerning custody, possession, or placement of the child or access to or visitation with the child; or if a court has continuing, exclusive jurisdiction over the child. An authorization agreement obtained in violation of this provision is void. Tex. Fam. Code § 34.004(b), (c).
§ 46.24Duties of Parties to Agreement
If both parents did not sign the authorization agreement, not later than the tenth day after the date the authorization agreement is executed the parties must mail to the parent who was not a party to the agreement at the parent’s last known address, if that parent is living and that parent’s parental rights have not been terminated, (a) one copy of the executed authorization agreement by certified mail, return receipt requested, or international registered mail, return receipt requested, as applicable, and (b) one copy of the executed authorization agreement by first class mail or international first class mail, as applicable. Tex. Fam. Code § 34.005(a). Except as otherwise provided by subsection (a–2), an authorization agreement is void if the parties fail to comply with this requirement. Tex. Fam. Code § 34.005(a–1).
The foregoing provision does not apply to an authorization agreement if the parent who was not a party to the agreement does not have court-ordered possession of or access to the child who is the subject of the agreement and has previously committed an act of family violence, as defined by Family Code section 71.004, or assault against the parent who is a party to the agreement, the child who is the subject of the agreement, or another child of the parent who is a party to the agreement, as documented by one or more of the following: (1) the issuance of a protective order against the parent who was not a party to the agreement as provided under Family Code chapter 85 or under a similar law of another state or (2) the conviction of the parent who was not a party to the agreement of an offense under title 5 of the Texas Penal Code or of another criminal offense in Texas or in another state an element of which involves a violent act or prohibited sexual conduct. Tex. Fam. Code § 34.005(a–2).
A party to the authorization agreement must immediately inform each other party of any change in the party’s address or contact information. If a party fails to comply with this requirement, the authorization agreement is voidable by the other party. Tex. Fam. Code § 34.005(b).
An authorization agreement is voidable by a party if the other party knowingly obtained the agreement by fraud, duress, or misrepresentation or if the other party knowingly made a false statement on the agreement. Tex. Fam. Code § 34.006.
A person who is not a party to the authorization agreement who relies on it in good faith, without actual knowledge that it is void, revoked, or invalid, is not subject to civil or criminal liability to any person, and is not subject to professional disciplinary action, for that reliance if the agreement is completed as required by Family Code chapter 34. The authorization agreement does not affect the rights of the child’s parent or legal guardian regarding the care, custody, and control of the child; does not mean that the adult caregiver has legal custody of the child; and does not confer or affect standing or a right of intervention in any proceeding under Family Code title 5. Tex. Fam. Code § 34.007.
An authorization agreement executed under Family Code chapter 34 is for a term of six months from the date the parties enter into the agreement and renews automatically for six-month terms unless an earlier expiration date is stated in the authorization agreement, the authorization agreement is terminated as provided by section 34.008, or a court authorizes the continuation of the agreement as provided by section 34.008(b). Tex. Fam. Code § 34.0075.
§ 46.28Termination of Agreement
In general, an authorization agreement terminates if, after the execution of the agreement, a court enters an order affecting the parent-child relationship; an order concerning custody, possession, or placement of the child; an order concerning access to or visitation with the child; or an order regarding the appointment of a guardian for the child under subchapter B, chapter 1104, of the Estates Code. However, an authorization agreement may continue after such a court order is entered if the court entering the order gives written permission. Tex. Fam. Code § 34.008(a), (b).
An authorization agreement terminates on written revocation by a party to the agreement if the party (1) gives each party written notice of the revocation; (2) files the written revocation with the clerk of the county in which the child resides, the child resided at the time the agreement was executed, or the adult caregiver resides; and (3) files the written revocation with the clerk of each court that has continuing, exclusive jurisdiction over the child; in which there is a court order or pending suit affecting the parent-child relationship concerning the child; in which there is pending litigation concerning custody, possession, or placement of the child or access to or visitation with the child; or that has entered an order regarding the appointment of a guardian for the child under subchapter B, chapter 1104, of the Estates Code. If both parents have signed the authorization agreement, either parent may revoke it without the other parent’s consent. Tex. Fam. Code § 34.008(c), (e).
Execution of a subsequent authorization agreement does not by itself supersede, invalidate, or terminate a prior agreement. Tex. Fam. Code § 34.008(f).
Caveat: County clerks and court clerks in another state might not recognize a Texas revocation and might refuse to file it. Consultation with an attorney in the other state might be advisable.
A person commits an offense if the person knowingly presents a document that is not a valid authorization agreement as a valid authorization agreement under Family Code chapter 34; makes a false statement on an authorization agreement; or obtains an authorization agreement by fraud, duress, or misrepresentation. The offense is a class B misdemeanor. Tex. Fam. Code § 34.009.
[Sections 46.30 through 46.40 are reserved for expansion.]
IV. Temporary Authorization for Voluntary Inpatient Mental Health Services for Child
§ 46.41Authorization for Inpatient Mental Health Services Generally
Chapter 35A of the Texas Family Code allows a person eligible to consent to treatment under Code section 32.001(a)(1), (2), or (3)—a grandparent, an adult sibling, or an adult aunt or uncle—who has had actual care, custody, and control of a child for the six months preceding the date the person files a petition with the court to seek a court order for temporary authorization to consent to voluntary inpatient mental health services for the child. Tex. Fam. Code §§ 35A.001, 35A.002; see Tex. Fam. Code § 32.001(a).
A petition for temporary authorization to consent to voluntary inpatient mental health services for a child should be filed in the district court in the county in which the petitioner resides. Tex. Fam. Code § 35A.002. The petition must be styled “ex parte” and be in the name of the child, and it must be verified by the petitioner. Tex. Fam. Code § 35A.003(1), (2).
The petition must state the name, date of birth, and current physical address of the child and of the petitioner and the name and, if known, the current physical and mailing addresses of the child’s parents, conservators, or guardians. Tex. Fam. Code § 35A.003(3).
The petition must also describe the status and location of any court proceeding in Texas or another state with respect to the child. Tex. Fam. Code § 35A.003(4).
Further, the petition must describe the petitioner’s relationship to the child and provide the dates during the preceding six months that the child has resided with the petitioner. The petition must contain a certificate of medical examination for mental illness prepared by a physician who has examined the child not earlier than the third day before the petition is filed and be accompanied by a sworn statement containing the physician’s opinion, and the detailed reasons for that opinion, that the child is a person (1) with mental illness or who demonstrates symptoms of a serious emotional disorder and (2) who presents a risk of serious harm to self or others if not immediately restrained or hospitalized. The petition must state any reason that the petitioner is unable to obtain signed, written documentation from a parent, conservator, or guardian of the child. Tex. Fam. Code § 35A.003(5)–(8).
On receipt of a petition for temporary authorization to consent to voluntary inpatient mental health services for a child, the court shall set a hearing. A copy of the petition and notice of hearing shall be delivered to the child’s parent, conservator, or guardian by personal service or by certified mail, return receipt requested, at the last known address of the parent, conservator, or guardian. Tex. Fam. Code § 35A.004.
The court may hear evidence relating to the child’s need for inpatient mental health services by the petitioner, any other matter raised in the petition, and any objection or other testimony of the child’s parent, conservator, or guardian. If a parent, conservator, or guardian objects, the court must dismiss the petition. Tex. Fam. Code § 35A.005(a), (b).
A temporary authorization order should be granted only if the court finds (1) by a preponderance of the evidence that there is no available parent, conservator, guardian, or other legal representative to give consent for voluntary inpatient mental health services and (2) by clear and convincing evidence that the child is a person with mental illness or who demonstrates symptoms of a serious emotional disorder and who presents a risk of serious harm to self or others if not immediately restrained or hospitalized. Tex. Fam. Code § 35A.005(c).
A copy of the order must be filed under the cause number in any court that has rendered a conservatorship or guardian order regarding the child and be sent to the last known address of the child’s parent, conservator, or guardian. Tex. Fam. Code § 35A.005(f).
§ 46.45Duration of Authorization
The order granting temporary authorization expires on the earliest of the date the petitioner requests that the child be discharged from the facility; the date a physician determines that the criteria concerning the child’s condition listed at Code section 35A.005(c)(2) no longer apply to the child; or the tenth day after the date the order is issued; however, if the petitioner obtains an order for temporary managing conservatorship before the order expires on the tenth day, the order continues in effect until the occurrence of the earlier of the other two events. Tex. Fam. Code § 35A.005(d), (e).
[Chapters 47 through 49 are reserved for expansion.]