The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), the repeal of the current version of Subchapter O, Independent Court-Ordered Social Studies, consisting of §§745.9060, 745.9061, 745.9063, 745.9065, 745.9067, 745.9068, 745.9069 - 745.9071, 745.9073, 745.9075, 745.9077, 745.9079, 745.9081, 745.9083, 745.9085, 745.9087, 745.9089, 745.9090, 745.9091 - 745.9097, and 745.9100; and new Subchapter O, Independent Court-Ordered Adoption Evaluations, consisting of §§745.9041, 745.9043, 745.9045, 745.9047, 745.9049, 745.9051, 745.9053, 745.9055, 745.9057, 745.9059, 745.9061, 745.9063, 745.9065, 745.9067, 745.9069, 745.9071, 745.9073, 745.9075, 745.9077, 745.9079, 745.9081, 745.9083, 745.9085, 745.9087, 745.9089, 745.9091, 745.9093, 745.9095, 745.9097, and 745.9098, in Chapter 745, Licensing. The purpose of the revision is to implement portions of House Bill (HB) 1449 that was passed by the 84th Texas Legislature in 2015. The changes to the law overhaul the current statutes regarding "social studies" in Chapter 107 of the Texas Family Code (TFC). The new statutory language divides "social studies" into two sections: Child Custody Evaluations and Adoption Evaluations. TFC, Chapter 107, Subchapter E, Adoption Evaluations, requires DFPS to establish minimum requirements for what is now called "pre-placement and post-placement portions of an adoption evaluation." No rules are mandated for Child Custody Evaluations.

These rules do not apply to adoption evaluations conducted by DFPS, contractors of DFPS, or child placing agencies (CPAs), which are governed by other laws and standards. These rules will only apply in independent adoption situations where a court orders an adoption evaluator to conduct an adoption evaluation. Child Care Licensing (CCL) has no authority over or enforcement powers regarding the adoption evaluators. CCL's only role is to propose and adopt rules. The courts who appoint the evaluators will be responsible for enforcing these rules once they are adopted.

The new version of Subchapter O implements the new language of the statute, clarifies the new law, and updates the minimum requirements for the pre-placement and post-placement portions of an adoption evaluation.

A summary of the changes follows:

New §745.9041 defines the words to be used in this subchapter, including the new terms "adoption evaluation" and "adoption evaluator."

New §745.9043 states that the purpose of this subchapter is to establish minimum requirements for the pre-placement and post-placement portions of an adoption evaluation.

New §745.9045 clarifies that the rules in this subchapter only apply to independent adoptions and do not apply to adoption evaluations conducted by DFPS employees, DFPS contractors, or CPAs.

New §745.9047 specifies the requirements for an adoption evaluator to make assessments, conclusions, and recommendations when conducting an adoption evaluation.

New §745.9049 clarifies that an adoption evaluator may not consider an adoptive parent's membership in the armed forces as a negative factor in an adoption evaluation.

New §745.9051 requires an adoption evaluator to report suspicious illegal adoptive placements to DFPS.

New §745.9053 clarifies that usually the pre-placement portion of an adoption evaluation is conducted before the child begins living in the adoptive parents' home.

New §745.9055 specifies the information about the child that is required in the pre-placement portion of an adoption evaluation.

New §745.9057 specifies the information about the adoptive parents that is required in the pre-placement portion of an adoption evaluation.

New §745.9059 specifies who must be interviewed during the pre-placement portion of an adoption evaluation.

New §745.9061 clarifies the interview documentation requirements for the pre-placement portion of an adoption evaluation.

New §745.9063 clarifies the requirements for visiting the adoptive parents' home when conducting the pre-placement portion of an adoption evaluation.

New §745.9065 clarifies the requirements for assessing the adoptive parents' home and grounds when conducting the pre-placement portion of an adoption evaluation.

New §745.9067 requires additional screening of the adoptive parents when they have previously been screened to be adoptive parents or foster parents by another CPA.

New §745.9069 specifies the information about the child's birth parents that is required in the pre-placement portion of an adoption evaluation.

New §745.9071 clarifies that updates are recommended if the adoptive child is not placed with the adoptive parents within six months of the completion of the pre-placement portion of an adoption evaluation.

New §745.9073 clarifies that an update is required if the adoptive parents plan to adopt another child, either in addition to or instead of the child for whom the pre-placement portion of an adoption evaluation was completed.

New §745.9075 clarifies the requirements for an update of the pre-placement portion of an adoption evaluation.

New §745.9077 specifies the written information that must be included in the pre-placement portion of an adoption evaluation report.

New §745.9079 clarifies that the pre-placement and post-placement portions of an adoption evaluation and reports may be combined and a single report completed when the suit for adoption is filed after the child began living in the adoptive parents' home.

New §745.9081 clarifies that the interviews for the post-placement portion of an adoption evaluation must be conducted after the child has resided in the adoptive parents' home for at least five months. However, the gathering of written information for the post-placement portion of an adoption evaluation may start after the child begins living in the adoptive parents' home.

New §745.9083 specifies who must be interviewed during the post-placement portion of an adoption evaluation.

New §745.9085 clarifies what issues must be addressed in the interviews for the post-placement portion of an adoption evaluation.

New §745.9087 clarifies the interview documentation requirements for the post-placement portion of an adoption evaluation.

New §745.9089 clarifies the requirements for visiting the adoptive parents' home when conducting the post-placement portion of an adoption evaluation.

New §745.9091 specifies the written information that must be included in the post-placement portion of an adoption evaluation report.

New §745.9093 clarifies that the adoptive parents, adoptive parents' attorney, or the adoption evaluator must request: (1) a fingerprint based criminal history background check from the Department of Public Safety and the Federal Bureau of Investigations; and (2) a central registry background check from DFPS.

New §745.9095 clarifies that the adoption evaluator may also request from DFPS a complete, unredacted copy of any investigative record regarding abuse or neglect that relates to any person residing in the adoptive parents' home.

New §745.9097 clarifies that the adoptive parents are entitled to receive a copy of the pre-placement and post-placement portions of the adoption evaluation reports before the court issues a final order regarding the adoption.

New §745.9098 explains to the adoptive parents who they or their attorney may contact regarding a complaint on how the adoption evaluation was conducted, including: (1) the court that ordered the adoption evaluation; and/or (2) the board that licenses the person who primarily conducted the adoption evaluation, if applicable.

Tracy Henderson, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. It is assumed that any costs related to statutory changes in the adoption evaluation process or modifications made to strengthen the adoption evaluation process will be paid for by the adoptive parents that filed the suit for adoption and no additional costs will be required of the local courts.

Ms. Henderson also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be compliance with Texas Family Code, §107.159(a) and §107.160(a); and strengthening the adoption evaluation process. While CCL has no regulatory function over the adoption evaluators covered by these rules, CCL does not anticipate any effect on large, small, or micro-businesses. CCL also does not anticipate any economic cost to persons who are required to comply with the proposed sections because (1) the rules do not require the purchase of any new equipment; (2) the necessity of any new requirements are ultimately subject to the discretion of the court presiding over an individual case; and (3) it is assumed that any costs related to statutory changes in the adoption evaluation process or modifications made to strengthen the adoption evaluation process will be passed on to the adoptive parents that filed the suit for adoption and no additional costs will be required of the adoption evaluators.

HHSC has determined that the proposed sections do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under §2007.043, Government Code.

Questions about the content of the proposal may be directed to Gerry Williams at (512) 438-5559 in DFPS's Child Care Licensing Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-529, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

The new sections are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The new sections implement portions of HB 1449, which adds Subchapter E, Adoption Evaluations, to Chapter 107 of the Texas Family Code. More specifically, these modifications primarily implement §§107.151, 107.152, 107.159(a), and 107.160(a).