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1. Parent and community involvement.

2. Providing every student with access to social and emotional learning skills needed to transition into post secondary settings.

3. Goal-setting.

4. Connecting foster students with a mentorship program

5. Weekly Check-ins.

6. Ensuring Maslow’s Hierarchy of Needs are being met.

7. Providing foster students and their guardians with community resources.

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I chose the topic because I have spent my five years as an educator working in underserved communities and with students in the foster care system. This padlet will assist educators and school counselors with becoming familiar with the issues students in the foster care system may face. For example, the resources on this padlet will help foster students with a stable school environment, bridge the communication between schools during times of transitions, promote resilience and identify protective factors, and collaborate with foster/biological family and community stakeholders.

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According to the American School Counselor Association (2018), school counselors should be knowledgeable about the foster care system and resources provided to them. Children in the foster care system face many obstacles, so it is imperative for school counselors to help them succeed. Children in foster care can struggle academically because of trauma and a lack of guidance compared to their peers. Lastly, school counselors have a duty to meet the needs of all students.

American School Counselor Association (2018). The school counselor and supporting students in foster care. https://schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Supporting-Students-in-Fo

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The School Counselor and Supporting Students in Foster Care

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School counselors recognize students in the foster care system are resilient, have many strengths and may require additional support in obtaining resources, social/emotional care, academic planning and college/career guidance. School counselors recognize it is their duty to be knowledgeable about legislation, resources and needs for students in foster care.

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Serving Students in Foster Care: Implications and Interventions for School Counselors

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Serving Students in Foster Care: Implications and Interventions for School Counselors

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Students in the foster care system are constantly facing many struggles and battles that they cannot quite overcome by themselves. School counselors can help them succeed by listening to their needs, checking in on them weekly, and going above and beyond to ensure they are accomplishing their academic goals. “School counselors should be aware of the barriers related to access that exist for students in foster care and should be intentional in taking steps to remove any inequities” (Wissel & Brinser, 2020, p. 171). Lastly, school counselors should recognize their foster care students’ strengths and help them with them strategies on excelling mentally and emotionally.

Brinser, H. & Wissel, A. (2020). Serving students in foster care: Implications and interventions for school counselors. The Professional Counselor. 10(2) 170-180. https://tpcjournal.nbcc.org/wp-content/uploads/2020/06/Pages-170-180-Brinser-Serving-Students-in-Foster-Care.pdf

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The article discusses the misfortune of events currently in the Texas foster care system. Below are a few highlights from the article:

Children in the foster care system in Texas are at an all-time high.

Children are being removed from their families without any preventative measures

The Department of Family Protective Services (DFPS) is not in compliance with the Family First Program

DFPS is spending millions of dollars to send children in Texas to other states because of the lack of placement in Texas.

Texas is facing a capacity issue in foster homes.

Oxner, R. (2022). “From bad to worse”: U.S. judge deplores conditions for Texas foster kids sent out of state. The Texas Tribune. https://www.texastribune.org/2022/01/12/texas-foster-care-system-fines/

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Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.
A Michigan facility housing Texas foster care children was missing its front door while it was 28 degrees outside and there hadn't been indoor heat for 24 hours.

Staff didn't make calls to get either the heat restored or the door fixed. They also didn't attempt to move the children or give them blankets or jackets.

That's just one of the out-of-state facilities where Texas recently sent 106 foster children, spending millions, after failing to find suitable placements in Texas, according to a new report from federal court-appointed monitors who act as watchdogs for the system.

A federal judge this week blasted state officials over this practice and once again threatened to issue financial sanctions against Texas for its lack of reform. The hearing - and threats of more penalties - were part of a yearslong lawsuit, which found Texas was violating the constitutional rights of foster children.

While noting there were "some bright spots," U.S. District Judge Janis Jack criticized Department of Family and Protective Services officials over their care of children within the system, high workloads on individual caseworkers, ongoing placement woes and low COVID-19 vaccination rates among youth.

Some of the issues persist more than two years after Jack ordered reforms, she said, and she threatened to levy fines against the DFPS and to hold it in contempt of the court - which she has done twice already.

"It looks like we're just going from bad to worse," Jack said.

The Michigan facility had several documented violations ranging from staff members' inappropriate behavior to negligence. When the court monitors visited in December, there were 14 Texas foster children in two Michigan facilities operated by the same organization.

"The children's rooms resembled juvenile cells, with little-to-no furniture aside from a built-in, concrete or wood platform bed, covered by a plastic-covered mattress," the court monitors wrote. "The units were dirty; the floors looked like they had not been cleaned ... the monitoring team observed numerous safety hazards and items providing potential opportunities for youth to selfharm."

Tuesday's hearing comes just a day after the release of a report compiled by court-appointed watchdogs, which gave updates on children in unlicensed placements and details on the out-of-state facilities where some were placed.

"I had to read it and take breaks because it broke my heart that Texas is treating their children like this," Jack said. "Sad, isn't it? It just points out the failure of the system to help these children."

Jack asked for an update on whether Child Protective Services could track where all of its foster children are placed - a problem Jack told them to fix previously - and expressed frustration when officials said the technology was still being developed.

"Oh, for God's sake. I just don't understand this incompetence ... You don't know where the children are," Jack said. "Now we know today, 11 years into this lawsuit, that no one knows where these children are placed. I'm speechless."

Children in unlicensed placements and out of state

Texas has been facing a capacity crisis as many facilities - many of which deemed unsafe for children - opted to close or were shut down resulting in a loss of beds for some of the most vulnerable youth. Officials struggled to place children in appropriate facilities as a result, leading to record numbers of children staying in unlicensed placements - often dangerous or under-regulated - such as motels and CPS offices.

The number of children being housed in unlicensed placements peaked at 416 in July before it began decreasing. It ticked down to 236 in November, a figure still much higher than in past years.

But a large portion of those children are still spending long spells in CPS offices and rented properties, court documents showed. In November, 16% of children who spent nights in unlicensed placements were placed there for 36 days or longer.

During the ongoing placement crisis, Texas also had a sharp increase in the number of foster children it sent out of state. Between January 2021 and October 2021, an average of 38 children were sent out of Texas every month - compared to a monthly average of 21 for the year prior. In that period in 2021, the state spent $2.9 million to send children out of state.

Sending children out of state is "undesirable for many reasons," a panel of experts said in a new court filing. The experts said the practice pulls children from their home communities which causes "a loss of critical connections, and keeping fewer eyes on the youth's safety and well-being."

COVID-19 vaccinations

Jack grilled Texas child care officials on Tuesday over the vaccination rate in the state's foster care system, with 75.3% of those children not vaccinated for COVID-19.

She asked officials why the number of vaccinated children is so low. It is unclear whether that statistic includes children under 5, who are not yet eligible to be vaccinated.

State officials during the hearing revealed there is no mandate for a COVID-19 vaccine among foster youth. Some expressed difficulties in getting children to be vaccinated and said they refuse.

Jack dismissed that notion and noted that foster children have to be immunized for other diseases - such as mumps or measles. She called the lack of COVID-19 vaccination "negligence."

"This continued, unconstitutional and unsafe treatment of these children is just getting to everybody that's involved in this case," Jack said.

The DFPS website outlines its policy on vaccinations for youth in CPS custody. "Unless there is known objection by the parent or person with legal authority over the child, the caseworker must ensure that children in DFPS conservatorship are immunized against disease," the website states.

The department states its vaccine schedule is in accordance with the American Academy of Pediatrics. The AAP recommends COVID-19 vaccination for all children and adolescents 5 years old and older who do not have contraindications.

Federal dollars left on the table

Jack said the state was set to miss out on millions in federal funds because it is not compliant with the federal Family First program, which emphasizes preventive services to avoid having to remove children from their families and instead provide support to keep them intact.

Instead of wasting money sending children out of state to subpar facilities, Jack said the system could use those federal funds for things like attracting high-quality caregivers for the most troubled kids and create mobile mental health crisis intervention teams.

DFPS is expecting a loss of $17.4 million in federal support in 2022 and $25.6 million in 2023 because Texas is not compliant with Family First, court documents showed.

Last year, Jack ended a hearing earlier than expected to call for more collaboration between state officials, the court and attorneys representing foster children. All parties in the case - along with Gov. Greg Abbott 's blessing - agreed to tap three experts to seek solutions for the system's capacity woes.

"Texas is a big state, but the magnitude of the problem here, I think, gave us pause," said Judith Meltzer, one of the experts and president of The Center for the Study of Social Policy. "By setting up these unlicensed facilities across the state and staffing them with CPS workers - I think we found that very unusual and a little startling."

Texas said it would "cooperate in good faith" but that the results were nonbinding.

The panel targeted mental health services in its report, saying better access was necessary.

"The current system of care in Texas is woefully inadequate, as evidenced by the steady number of parents who are relinquishing custody of their children with the hopes of getting mental health services," the panel stated in the report.

Meltzer stressed during Tuesday's hearing that increasing mental health services could prevent some children from ever being removed from their homes to begin with.

"It's absolutely central because if your goal is to reduce the number of children and youth who have to come to the child welfare system, you have to have a streamlined system of mental health support to families," Meltzer said.

The panel made a series of short- and long-term suggestions over a range of issues, including building a statewide children's mental health system, increasing Medicaid rates for children's mental health services and improving reimbursement of psychiatric services.

The experts stressed pursuing solutions other than group facilities that handle numerous cases.

"The environment in these non-therapeutic settings is not stable. Children and direct care staff cycle through continuously. Programming may be limited, meaning children have little that is productive to do with their time. Conflict between residents is a constant," the panel wrote. "Some residential placements are short-term, therapeutic, stable, and attentive to children's needs, but many are not."

State officials said the report was helpful and did not contest proposed solutions - but said time was needed to gauge feasibility.

Jack stressed that she wanted to see progress on a number of fronts and requested various actions and reports from DFPS in the meantime. The judge - who is retired except for this case and has overseen it for the entire time - said long-term solutions are necessary.

"I'm not going to have a stroke today. I can tell you that I'll be around a while," she said.

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department of family and protective services

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"From bad to worse": U.S. judge deplores conditions for Texas foster kids sent out of state

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Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news. A Michigan facility housing Texas foster care children was missing its front door while it was 28 degrees outside and there hadn't been indoor heat for 24 hours.

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Parents now have a right to reinstate their parental rights. Parents can file a petition with the court after two years of losing their rights if the child has not been adopted or in the process of being adopted.

(Tex. Fam. Code § 161.302)

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FAMILY CODE



TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP



SUBTITLE B. SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP



CHAPTER 161. TERMINATION OF THE PARENT-CHILD RELATIONSHIP



SUBCHAPTER A. GROUNDS



Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP. (a) In this section, "born addicted to alcohol or a controlled substance" means a child:


(1) who is born to a mother who during the pregnancy used a controlled substance, as defined by Chapter 481, Health and Safety Code, other than a controlled substance legally obtained by prescription, or alcohol; and


(2) who, after birth as a result of the mother's use of the controlled substance or alcohol:


(A) experiences observable withdrawal from the alcohol or controlled substance;


(B) exhibits observable or harmful effects in the child's physical appearance or functioning; or


(C) exhibits the demonstrable presence of alcohol or a controlled substance in the child's bodily fluids.


(b) The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:


(1) that the parent has:


(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return;


(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;


(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;


(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;


(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;


(F) failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition;


(G) abandoned the child without identifying the child or furnishing means of identification, and the child's identity cannot be ascertained by the exercise of reasonable diligence;


(H) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth;


(I) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261;


(J) been the major cause of:


(i) the failure of the child to be enrolled in school as required by the Education Code; or


(ii) the child's absence from the child's home without the consent of the parents or guardian for a substantial length of time or without the intent to return;


(K) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter;


(L) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code, or under a law of another jurisdiction that contains elements that are substantially similar to the elements of an offense under one of the following Penal Code sections, or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:


(i) Section 19.02 (murder);


(ii) Section 19.03 (capital murder);


(iii) Section 19.04 (manslaughter);


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


(v) Section 22.01 (assault);


(vi) Section 22.011 (sexual assault);


(vii) Section 22.02 (aggravated assault);


(viii) Section 22.021 (aggravated sexual assault);


(ix) Section 22.04 (injury to a child, elderly individual, or disabled individual);


(x) Section 22.041 (abandoning or endangering child);


(xi) Section 25.02 (prohibited sexual conduct);


(xii) Section 43.25 (sexual performance by a child);


(xiii) Section 43.26 (possession or promotion of child pornography);


(xiv) Section 21.02 (continuous sexual abuse of young child or disabled individual);


(xv) Section 20A.02(a)(7) or (8) (trafficking of persons); and


(xvi) Section 43.05(a)(2) (compelling prostitution);


(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state;


(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:


(i) the department has made reasonable efforts to return the child to the parent;


(ii) the parent has not regularly visited or maintained significant contact with the child; and


(iii) the parent has demonstrated an inability to provide the child with a safe environment;


(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child;


(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:


(i) failed to complete a court-ordered substance abuse treatment program; or


(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;


(Q) knowingly engaged in criminal conduct that has resulted in the parent's:


(i) conviction of an offense; and


(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition;


(R) been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription;


(S) voluntarily delivered the child to a designated emergency infant care provider under Section 262.302 without expressing an intent to return for the child;


(T) been convicted of:


(i) the murder of the other parent of the child under Section 19.02 or 19.03, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 19.02 or 19.03, Penal Code;


(ii) criminal attempt under Section 15.01, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 15.01, Penal Code, to commit the offense described by Subparagraph (i);


(iii) criminal solicitation under Section 15.03, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 15.03, Penal Code, of the offense described by Subparagraph (i); or


(iv) the sexual assault of the other parent of the child under Section 22.011 or 22.021, Penal Code, or under a law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 22.011 or 22.021, Penal Code; or


(U) been placed on community supervision, including deferred adjudication community supervision, or another functionally equivalent form of community supervision or probation, for being criminally responsible for the sexual assault of the other parent of the child under Section 22.011 or 22.021, Penal Code, or under a law of another state, federal law, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 22.011 or 22.021, Penal Code; and


(2) that termination is in the best interest of the child.


Text of subsection as amended by Acts 2021, 87th Leg., R.S., Ch. 29 (H.B. 2536), Sec. 1



(c) A court may not make a finding under Subsection (b) and order termination of the parent-child relationship based on evidence that the parent:


(1) homeschooled the child;


(2) is economically disadvantaged;


(3) has been charged with a nonviolent misdemeanor offense other than:


(A) an offense under Title 5, Penal Code;


(B) an offense under Title 6, Penal Code; or


(C) an offense that involves family violence, as defined by Section 71.004 of this code;


(4) provided or administered low-THC cannabis to a child for whom the low-THC cannabis was prescribed under Chapter 169, Occupations Code;


(5) declined immunization for the child for reasons of conscience, including a religious belief; or


(6) sought an opinion from more than one medical provider relating to the child's medical care, transferred the child's medical care to a new medical provider, or transferred the child to another health care facility.


Text of subsection as amended by Acts 2021, 87th Leg., R.S., Ch. 8 (H.B. 567), Sec. 3



(c) Evidence of one or more of the following does not constitute clear and convincing evidence sufficient for a court to make a finding under Subsection (b) and order termination of the parent-child relationship:


(1) the parent homeschooled the child;


(2) the parent is economically disadvantaged;


(3) the parent has been charged with a nonviolent misdemeanor offense other than:


(A) an offense under Title 5, Penal Code;


(B) an offense under Title 6, Penal Code; or


(C) an offense that involves family violence, as defined by Section 71.004 of this code;


(4) the parent provided or administered low-THC cannabis to a child for whom the low-THC cannabis was prescribed under Chapter 169, Occupations Code;


(5) the parent declined immunization for the child for reasons of conscience, including a religious belief; or


(6) the parent allowed the child to engage in independent activities that are appropriate and typical for the child's level of maturity, physical condition, developmental abilities, or culture.


(d) A court may not order termination under Subsection (b)(1)(O) based on the failure by the parent to comply with a specific provision of a court order if a parent proves by a preponderance of evidence that:


(1) the parent was unable to comply with specific provisions of the court order; and


(2) the parent made a good faith effort to comply with the order and the failure to comply with the order is not attributable to any fault of the parent.


(d-1) The court may not order termination under Subsection (b)(1)(M) unless the petition for the termination of the parent-child relationship is filed not later than the first anniversary of the date the department or an equivalent agency in another state was granted managing conservatorship of a child in the case that resulted in the termination of the parent-child relationship with respect to that child based on a finding that the parent's conduct violated Subsection (b)(1)(D) or (E) or substantially equivalent provisions of the law of another state.


(e) This section does not prohibit the Department of Family and Protective Services from offering evidence described by Subsection (c) as part of an action to terminate the parent-child relationship under this subchapter.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 709, Sec. 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 751, Sec. 65, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 575, Sec. 9, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1022, Sec. 60, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1087, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1390, Sec. 18, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 809, Sec. 1, eff. Sept. 1, 2001.


Amended by:


Acts 2005, 79th Leg., Ch. 508 (H.B. 657), Sec. 2, eff. September 1, 2005.


Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.30, eff. September 1, 2007.


Acts 2009, 81st Leg., R.S., Ch. 86 (S.B. 1838), Sec. 1, eff. September 1, 2009.


Acts 2011, 82nd Leg., R.S., Ch. 1 (S.B. 24), Sec. 4.02, eff. September 1, 2011.


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.078, eff. April 2, 2015.


Acts 2015, 84th Leg., R.S., Ch. 944 (S.B. 206), Sec. 11, eff. September 1, 2015.


Acts 2017, 85th Leg., R.S., Ch. 40 (S.B. 77), Sec. 2, eff. September 1, 2017.


Acts 2017, 85th Leg., R.S., Ch. 317 (H.B. 7), Sec. 12, eff. September 1, 2017.


Acts 2021, 87th Leg., R.S., Ch. 8 (H.B. 567), Sec. 3, eff. September 1, 2021.


Acts 2021, 87th Leg., R.S., Ch. 29 (H.B. 2536), Sec. 1, eff. May 15, 2021.


Acts 2021, 87th Leg., R.S., Ch. 221 (H.B. 375), Sec. 2.17, eff. September 1, 2021.


Acts 2021, 87th Leg., R.S., Ch. 831 (H.B. 2924), Sec. 1, eff. September 1, 2021.


Sec. 161.002. TERMINATION OF THE RIGHTS OF AN ALLEGED BIOLOGICAL FATHER. (a) Except as otherwise provided by this section, the procedural and substantive standards for termination of parental rights apply to the termination of the rights of an alleged father.


(b) The rights of an alleged father may be terminated if:


(1) after being served with citation, he does not respond by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160;


(2) the child is over one year of age at the time the petition for termination of the parent-child relationship or for adoption is filed, he has not registered with the paternity registry under Chapter 160, and after the exercise of due diligence by the petitioner:


(A) his identity and location are unknown; or


(B) his identity is known but he cannot be located;


(3) the child is under one year of age at the time the petition for termination of the parent-child relationship or for adoption is filed and he has not registered with the paternity registry under Chapter 160; or


(4) he has registered with the paternity registry under Chapter 160, but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite the due diligence of the petitioner.


(c) Repealed by Acts 2015, 84th Leg., R.S., Ch. 1, Sec. 1.203(2), eff. April 2, 2015.


(c-1) The termination of the rights of an alleged father under Subsection (b)(2) or (3) rendered on or after January 1, 2008, does not require personal service of citation or citation by publication on the alleged father, and there is no requirement to identify or locate an alleged father who has not registered with the paternity registry under Chapter 160.


(d) The termination of rights of an alleged father under Subsection (b)(4) does not require service of citation by publication on the alleged father.


(e) The court shall not render an order terminating parental rights under Subsection (b)(2) or (3) unless the court receives evidence of a certificate of the results of a search of the paternity registry under Chapter 160 from the vital statistics unit indicating that no man has registered the intent to claim paternity.


(f) The court shall not render an order terminating parental rights under Subsection (b)(4) unless the court, after reviewing the petitioner's sworn affidavit describing the petitioner's effort to obtain personal service of citation on the alleged father and considering any evidence submitted by the attorney ad litem for the alleged father, has found that the petitioner exercised due diligence in attempting to obtain service on the alleged father. The order shall contain specific findings regarding the exercise of due diligence of the petitioner.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 66, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 561, Sec. 7, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 821, Sec. 2.16, eff. June 14, 2001; Acts 2001, 77th Leg., ch. 1090, Sec. 1, eff. Sept. 1, 2001.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1283 (H.B. 3997), Sec. 4, eff. September 1, 2007.


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.079, eff. April 2, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.203(2), eff. April 2, 2015.


Sec. 161.003. INVOLUNTARY TERMINATION: INABILITY TO CARE FOR CHILD. (a) The court may order termination of the parent-child relationship in a suit filed by the Department of Family and Protective Services if the court finds that:


(1) the parent has a mental or emotional illness or a mental deficiency that renders the parent unable to provide for the physical, emotional, and mental needs of the child;


(2) the illness or deficiency, in all reasonable probability, proved by clear and convincing evidence, will continue to render the parent unable to provide for the child's needs until the 18th birthday of the child;


(3) the department has been the temporary or sole managing conservator of the child of the parent for at least six months preceding the date of the hearing on the termination held in accordance with Subsection (c);


(4) the department has made reasonable efforts to return the child to the parent; and


(5) the termination is in the best interest of the child.


(b) Immediately after the filing of a suit under this section, the court shall appoint an attorney ad litem to represent the interests of the parent against whom the suit is brought.


(c) A hearing on the termination may not be held earlier than 180 days after the date on which the suit was filed.


(d) An attorney appointed under Subsection (b) shall represent the parent for the duration of the suit unless the parent, with the permission of the court, retains another attorney.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 67, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 496, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1090, Sec. 2, eff. Sept. 1, 2001.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.080, eff. April 2, 2015.


Sec. 161.004. TERMINATION OF PARENTAL RIGHTS AFTER DENIAL OF PRIOR PETITION TO TERMINATE. (a) The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if:


(1) the petition under this section is filed after the date the order denying termination was rendered;


(2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered;


(3) the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and


(4) termination is in the best interest of the child.


(b) At a hearing under this section, the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.


Sec. 161.005. TERMINATION WHEN PARENT IS PETITIONER. (a) A parent may file a suit for termination of the petitioner's parent-child relationship. Except as provided by Subsection (h), the court may order termination if termination is in the best interest of the child.


(b) If the petition designates the Department of Family and Protective Services as managing conservator, the department shall be given service of citation. The court shall notify the department if the court appoints the department as the managing conservator of the child.


(c) Subject to Subsection (d), a man may file a suit for termination of the parent-child relationship between the man and a child if, without obtaining genetic testing, the man signed an acknowledgment of paternity of the child in accordance with Subchapter D, Chapter 160, or was adjudicated to be the father of the child in a previous proceeding under this title in which genetic testing did not occur. The petition must be verified and must allege facts showing that the petitioner:


(1) is not the child's genetic father; and


(2) signed the acknowledgment of paternity or failed to contest parentage in the previous proceeding because of the mistaken belief, at the time the acknowledgment was signed or on the date the court order in the previous proceeding was rendered, that he was the child's genetic father based on misrepresentations that led him to that conclusion.


(d) A man may not file a petition under Subsection (c) if:


(1) the man is the child's adoptive father;


(2) the child was conceived by assisted reproduction and the man consented to assisted reproduction by his wife under Subchapter H, Chapter 160; or


(3) the man is the intended father of the child under a gestational agreement validated by a court under Subchapter I, Chapter 160.


(e) A petition under Subsection (c) must be filed not later than the second anniversary of the date on which the petitioner becomes aware of the facts alleged in the petition indicating that the petitioner is not the child's genetic father.


(e-1) Expired.


(f) In a proceeding initiated under Subsection (c), the court shall hold a pretrial hearing to determine whether the petitioner has established a meritorious prima facie case for termination of the parent-child relationship. If a meritorious prima facie claim is established, the court shall order the petitioner and the child to submit to genetic testing under Subchapter F, Chapter 160.


(g) If the results of genetic testing ordered under Subsection (f) identify the petitioner as the child's genetic father under the standards prescribed by Section 160.505 and the results of any further testing requested by the petitioner and ordered by the court under Subchapter F, Chapter 160, do not exclude the petitioner as the child's genetic father, the court shall deny the petitioner's request for termination of the parent-child relationship.


(h) If the results of genetic testing ordered under Subsection (f) exclude the petitioner as the child's genetic father, the court shall render an order terminating the parent-child relationship.


(i) An order under Subsection (h) terminating the parent-child relationship ends the petitioner's obligation for future support of the child as of the date the order is rendered, as well as the obligation to pay interest that accrues after that date on the basis of a child support arrearage or money judgment for a child support arrearage existing on that date. The order does not affect the petitioner's obligations for support of the child incurred before that date. Those obligations are enforceable until satisfied by any means available for the enforcement of child support other than contempt.


(j) An order under Subsection (h) terminating the parent-child relationship does not preclude:


(1) the initiation of a proceeding under Chapter 160 to adjudicate whether another man is the child's parent; or


(2) if the other man subject to a proceeding under Subdivision (1) is adjudicated as the child's parent, the rendition of an order requiring that man to pay child support for the child under Chapter 154, subject to Subsection (k).


(k) Notwithstanding Section 154.131, an order described by Subsection (j)(2) may not require the other man to pay retroactive child support for any period preceding the date on which the order under Subsection (h) terminated the parent-child relationship between the child and the man seeking termination under this section.


(l) At any time before the court renders an order terminating the parent-child relationship under Subsection (h), the petitioner may request that the court also order periods of possession of or access to the child by the petitioner following termination of the parent-child relationship. If requested, the court may order periods of possession of or access to the child only if the court determines that denial of periods of possession of or access to the child would significantly impair the child's physical health or emotional well-being.


(m) The court may include provisions in an order under Subsection (l) that require:


(1) the child or any party to the proceeding to participate in counseling with a mental health professional who:


(A) has a background in family therapy; and


(B) holds a professional license that requires the person to possess at least a master's degree; and


(2) any party to pay the costs of the counseling described by Subdivision (1).


(n) Notwithstanding Subsection (m)(1), if a person who possesses the qualifications described by that subdivision is not available in the county in which the court is located, the court may require that the counseling be conducted by another person the court considers qualified for that purpose.


(o) During any period of possession of or access to the child ordered under Subsection (l) the petitioner has the rights and duties specified by Section 153.074, subject to any limitation specified by the court in its order.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 68, eff. Sept. 1, 1995.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 54 (S.B. 785), Sec. 2, eff. May 12, 2011.


Acts 2013, 83rd Leg., R.S., Ch. 227 (H.B. 154), Sec. 1, eff. June 14, 2013.


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.081, eff. April 2, 2015.


Sec. 161.006. TERMINATION AFTER ABORTION. (a) A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the child was born alive as the result of an abortion.


(b) In this code, "abortion" has the meaning assigned by Section 245.002, Health and Safety Code.


(c) The court or the jury may not terminate the parent-child relationship under this section with respect to a parent who:


(1) had no knowledge of the abortion; or


(2) participated in or consented to the abortion for the sole purpose of preventing the death of the mother.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 2, eff. September 1, 2017.


Sec. 161.007. TERMINATION WHEN PREGNANCY RESULTS FROM CRIMINAL ACT. (a) Except as provided by Subsection (b), the court shall order the termination of the parent-child relationship of a parent and a child if the court finds by clear and convincing evidence that:


(1) the parent has engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code;


(2) as a direct result of the conduct described by Subdivision (1), the victim of the conduct became pregnant with the parent's child; and


(3) termination is in the best interest of the child.


(b) If, for the two years after the birth of the child, the parent was married to or cohabiting with the other parent of the child, the court may order the termination of the parent-child relationship of the parent and the child if the court finds that:


(1) the parent has been convicted of an offense committed under Section 21.02, 22.011, 22.021, or 25.02, Penal Code;


(2) as a direct result of the commission of the offense by the parent, the other parent became pregnant with the child; and


(3) termination is in the best interest of the child.


Added by Acts 1997, 75th Leg., ch. 561, Sec. 8, eff. Sept. 1, 1997.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.31, eff. September 1, 2007.


Acts 2013, 83rd Leg., R.S., Ch. 907 (H.B. 1228), Sec. 4, eff. September 1, 2013.


SUBCHAPTER B. PROCEDURES



Sec. 161.101. PETITION ALLEGATIONS; PETITION AND MOTION REQUIREMENTS. (a) A petition for the termination of the parent-child relationship is sufficient without the necessity of specifying the underlying facts if the petition alleges in the statutory language the ground for the termination and that termination is in the best interest of the child.


(b) A petition or motion filed by the Department of Family and Protective Services in a suit for termination of the parent-child relationship is subject to Chapter 10, Civil Practice and Remedies Code, and Rule 13, Texas Rules of Civil Procedure.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.


Amended by:


Acts 2021, 87th Leg., R.S., Ch. 8 (H.B. 567), Sec. 4, eff. September 1, 2021.


Sec. 161.102. FILING SUIT FOR TERMINATION BEFORE BIRTH. (a) A suit for termination may be filed before the birth of the child.


(b) If the suit is filed before the birth of the child, the petition shall be styled "In the Interest of an Unborn Child." After the birth, the clerk shall change the style of the case to conform to the requirements of Section 102.008.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.


Sec. 161.103. AFFIDAVIT OF VOLUNTARY RELINQUISHMENT OF PARENTAL RIGHTS. (a) An affidavit for voluntary relinquishment of parental rights must be:


(1) signed after the birth of the child, but not before 48 hours after the birth of the child, by the parent, whether or not a minor, whose parental rights are to be relinquished;


(2) witnessed by two credible persons; and


(3) verified before a person authorized to take oaths.


(b) The affidavit must contain:


(1) the name, county of residence, and age of the parent whose parental rights are being relinquished;


(2) the name, age, and birth date of the child;


(3) the names and addresses of the guardians of the person and estate of the child, if any;


(4) a statement that the affiant is or is not presently obligated by court order to make payments for the support of the child;


(5) a full description and statement of value of all property owned or possessed by the child;


(6) an allegation that termination of the parent-child relationship is in the best interest of the child;


(7) one of the following, as applicable:


(A) the name and county of residence of the other parent;


(B) a statement that the parental rights of the other parent have been terminated by death or court order; or


(C) a statement that the child has no presumed father;


(8) a statement that the parent has been informed of parental rights and duties;


(9) a statement that the relinquishment is revocable, that the relinquishment is irrevocable, or that the relinquishment is irrevocable for a stated period of time;


(10) if the relinquishment is revocable, a statement in boldfaced type concerning the right of the parent signing the affidavit to revoke the relinquishment only if the revocation is made before the 11th day after the date the affidavit is executed;


(11) if the relinquishment is revocable, the name and address of a person to whom the revocation is to be delivered; and


(12) the designation of a prospective adoptive parent, the Department of Family and Protective Services, if the department has consented in writing to the designation, or a licensed child-placing agency to serve as managing conservator of the child and the address of the person or agency.


(c) The affidavit may contain:


(1) a waiver of process in a suit to terminate the parent-child relationship filed under this chapter or in a suit to terminate joined with a petition for adoption; and


(2) a consent to the placement of the child for adoption by the Department of Family and Protective Services or by a licensed child-placing agency.


(d) A copy of the affidavit shall be provided to the parent at the time the parent signs the affidavit.


(e) The relinquishment in an affidavit that designates the Department of Family and Protective Services or a licensed child-placing agency to serve as the managing conservator is irrevocable. A relinquishment in any other affidavit of relinquishment is revocable unless it expressly provides that it is irrevocable for a stated period of time not to exceed 60 days after the date of its execution.


(f) A relinquishment in an affidavit of relinquishment of parental rights that fails to state that the relinquishment is irrevocable for a stated time is revocable as provided by Section 161.1035.


(g) To revoke a relinquishment under Subsection (e) the parent must sign a statement witnessed by two credible persons and verified before a person authorized to take oaths. A copy of the revocation shall be delivered to the person designated in the affidavit. If a parent attempting to revoke a relinquishment under this subsection has knowledge that a suit for termination of the parent-child relationship has been filed based on the parent's affidavit of relinquishment of parental rights, the parent shall file a copy of the revocation with the clerk of the court.


(h) The affidavit may not contain terms for limited post-termination contact between the child and the parent whose parental rights are to be relinquished as a condition of the relinquishment of parental rights.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 69, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 561, Sec. 9, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 561, Sec. 3, eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1283 (H.B. 3997), Sec. 5, eff. September 1, 2007.


Acts 2007, 80th Leg., R.S., Ch. 1412 (H.B. 568), Sec. 1, eff. September 1, 2007.


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.082, eff. April 2, 2015.


Sec. 161.1031. MEDICAL HISTORY REPORT. (a) A parent who signs an affidavit of voluntary relinquishment of parental rights under Section 161.103 regarding a biological child must also prepare a medical history report that addresses the medical history of the parent and the parent's ancestors.


(b) The Department of Family and Protective Services, in cooperation with the Department of State Health Services, shall adopt a form that a parent may use to comply with this section. The form must be designed to permit a parent to identify any medical condition of the parent or the parent's ancestors that could indicate a predisposition for the child to develop the condition.


(c) The medical history report shall be used in preparing the health, social, educational, and genetic history report required by Section 162.005 and shall be made available to persons granted access under Section 162.006 in the manner provided by that section.


Added by Acts 2005, 79th Leg., Ch. 1258 (H.B. 1999), Sec. 1, eff. September 1, 2005.


Sec. 161.1035. REVOCABILITY OF CERTAIN AFFIDAVITS. An affidavit of relinquishment of parental rights that fails to state that the relinquishment or waiver is irrevocable for a stated time is:


(1) revocable only if the revocation is made before the 11th day after the date the affidavit is executed; and


(2) irrevocable on or after the 11th day after the date the affidavit is executed.


Added by Acts 1997, 75th Leg., ch. 561, Sec. 10, eff. Sept. 1, 1997.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1283 (H.B. 3997), Sec. 6, eff. September 1, 2007.


Sec. 161.104. RIGHTS OF DESIGNATED MANAGING CONSERVATOR PENDING COURT APPOINTMENT. A person, licensed child-placing agency, or the Department of Family and Protective Services designated managing conservator of a child in an irrevocable or unrevoked affidavit of relinquishment has a right to possession of the child superior to the right of the person executing the affidavit, the right to consent to medical, surgical, dental, and psychological treatment of the child, and the rights and duties given by Chapter 153 to a possessory conservator until such time as these rights and duties are modified or terminated by court order.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 70, eff. Sept. 1, 1995.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.083, eff. April 2, 2015.


Sec. 161.106. AFFIDAVIT OF WAIVER OF INTEREST IN CHILD. (a) A man may sign an affidavit disclaiming any interest in a child and waiving notice or the service of citation in any suit filed or to be filed affecting the parent-child relationship with respect to the child.


(b) The affidavit may be signed before the birth of the child.


(c) The affidavit shall be:


(1) signed by the man, whether or not a minor;


(2) witnessed by two credible persons; and


(3) verified before a person authorized to take oaths.


(d) The affidavit may contain a statement that the affiant does not admit being the father of the child or having had a sexual relationship with the mother of the child.


(e) An affidavit of waiver of interest in a child may be used in a suit in which the affiant attempts to establish an interest in the child. The affidavit may not be used in a suit brought by another person, licensed child-placing agency, or the Department of Family and Protective Services to establish the affiant's paternity of the child.


(f) A waiver in an affidavit under this section is irrevocable.


(g) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1283, Sec. 13, eff. September 1, 2007.


(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1283, Sec. 13, eff. September 1, 2007.


(i) A copy of the affidavit shall be provided to the person who executed the affidavit at the time the person signs the affidavit.


(j) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1283, Sec. 13, eff. September 1, 2007.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 561, Sec. 11, eff. Sept. 1, 1997.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1283 (H.B. 3997), Sec. 7, eff. September 1, 2007.


Acts 2007, 80th Leg., R.S., Ch. 1283 (H.B. 3997), Sec. 13, eff. September 1, 2007.


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.084, eff. April 2, 2015.


Sec. 161.107. MISSING PARENT OR RELATIVE. (a) In this section:


(1) "Parent" means a parent, as defined by Section 160.102, whose parent-child relationship with a child has not been terminated. The term does not include a man who does not have a parent-child relationship established under Chapter 160.


(2) "Relative" means a parent, grandparent, or adult sibling or child.


(b) If a parent of the child has not been personally served in a suit in which the Department of Family and Protective Services seeks termination, the department must make a diligent effort to locate that parent.


(c) If a parent has not been personally served and cannot be located, the department shall make a diligent effort to locate a relative of the missing parent to give the relative an opportunity to request appointment as the child's managing conservator.


(d) If the department is not able to locate a missing parent or a relative of that parent and sufficient information is available concerning the physical whereabouts of the parent or relative, the department shall request the state agency designated to administer a statewide plan for child support to use the parental locator service established under 42 U.S.C. Section 653 to determine the location of the missing parent or relative.


(e) The department shall be required to provide evidence to the court to show what actions were taken by the department in making a diligent effort to locate the missing parent and relative of the missing parent.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 71, eff. Sept. 1, 1995.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1283 (H.B. 3997), Sec. 8, eff. September 1, 2007.


Acts 2007, 80th Leg., R.S., Ch. 1283 (H.B. 3997), Sec. 9, eff. September 1, 2007.


Sec. 161.108. RELEASE OF CHILD FROM HOSPITAL OR BIRTHING CENTER. (a) Before or at the time an affidavit of relinquishment of parental rights under Section 161.103 is executed, the mother of a newborn child may authorize the release of the child from the hospital or birthing center to a licensed child-placing agency, the Department of Family and Protective Services, or another designated person.


(b) A release under this section must be:


(1) executed in writing;


(2) witnessed by two credible adults; and


(3) verified before a person authorized to take oaths.


(c) A hospital or birthing center shall comply with the terms of a release executed under this section without requiring a court order.


Added by Acts 1997, 75th Leg., ch. 561, Sec. 12, eff. Sept. 1, 1997.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.085, eff. April 2, 2015.


Sec. 161.109. REQUIREMENT OF PATERNITY REGISTRY CERTIFICATE. (a) If a parent-child relationship does not exist between the child and any man, a certificate from the vital statistics unit signed by the registrar that a diligent search has been made of the paternity registry maintained by the unit and that a registration has not been found pertaining to the father of the child in question must be filed with the court before a trial on the merits in the suit for termination may be held.


(b) In a proceeding to terminate parental rights in which the alleged or probable father has not been personally served with citation or signed an affidavit of relinquishment or an affidavit of waiver of interest, the court may not terminate the parental rights of the alleged or probable father, whether known or unknown, unless a certificate from the vital statistics unit signed by the registrar states that a diligent search has been made of the paternity registry maintained by the unit and that a filing or registration has not been found pertaining to the father of the child in question.


Added by Acts 1997, 75th Leg., ch. 561, Sec. 12, eff. Sept. 1, 1997.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1283 (H.B. 3997), Sec. 10, eff. September 1, 2007.


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.086, eff. April 2, 2015.


SUBCHAPTER C. HEARING AND ORDER



Sec. 161.2011. CONTINUANCE; ACCESS TO CHILD. (a) A parent whose rights are subject to termination in a suit affecting the parent-child relationship and against whom criminal charges are filed that directly relate to the grounds for which termination is sought may file a motion requesting a continuance of the final trial in the suit until the criminal charges are resolved. The court may grant the motion only if the court finds that a continuance is in the best interest of the child. Notwithstanding any continuance granted, the court shall conduct status and permanency hearings with respect to the child as required by Chapter 263 and shall comply with the dismissal date under Section 263.401.


(b) Nothing in this section precludes the court from issuing appropriate temporary orders as authorized in this code.


(c) The court in which a suit to terminate the parent-child relationship is pending may render an order denying a parent access to a child if the parent is indicted for criminal activity that constitutes a ground for terminating the parent-child relationship under Section 161.001. The denial of access under this section shall continue until the date the criminal charges for which the parent was indicted are resolved and the court renders an order providing for access to the child by the parent.


Added by Acts 1997, 75th Leg., ch. 1022, Sec. 61, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 1090, Sec. 3, eff. Sept. 1, 2001.


Sec. 161.202. PREFERENTIAL SETTING. In a termination suit, after a hearing, the court shall grant a motion for a preferential setting for a final hearing on the merits filed by a party to the suit or by the amicus attorney or attorney ad litem for the child and shall give precedence to that hearing over other civil cases if:


(1) termination would make the child eligible for adoption; and


(2) discovery has been completed or sufficient time has elapsed since the filing of the suit for the completion of all necessary and reasonable discovery if diligently pursued.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 133, Sec. 5, eff. Sept. 1, 2001.


Amended by:


Acts 2005, 79th Leg., Ch. 172 (H.B. 307), Sec. 19, eff. September 1, 2005.


Sec. 161.2021. MEDICAL HISTORY REPORT. (a) In a termination suit, the court shall order each parent before the court to provide information regarding the medical history of the parent and the parent's ancestors.


(b) A parent may comply with the court's order under this section by completing the medical history report form adopted by the Department of Family and Protective Services under Section 161.1031.


(c) If the Department of Family and Protective Services is a party to the termination suit, the information provided under this section must be maintained in the department records relating to the child and made available to persons with whom the child is placed.


Added by Acts 2005, 79th Leg., Ch. 1258 (H.B. 1999), Sec. 2, eff. September 1, 2005.


Sec. 161.203. DISMISSAL OF PETITION. A suit to terminate may not be dismissed nor may a nonsuit be taken unless the dismissal or nonsuit is approved by the court. The dismissal or nonsuit approved by the court is without prejudice.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 1090, Sec. 4, eff. Sept. 1, 2001.


Sec. 161.204. TERMINATION BASED ON AFFIDAVIT OF WAIVER OF INTEREST. In a suit for termination, the court may render an order terminating the parent-child relationship between a child and a man who has signed an affidavit of waiver of interest in the child, if the termination is in the best interest of the child.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 1090, Sec. 5, eff. Sept. 1, 2001.


Sec. 161.205. ORDER DENYING TERMINATION. If the court does not order termination of the parent-child relationship, the court shall:


(1) deny the petition; or


(2) render any order in the best interest of the child.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 1090, Sec. 6, eff. Sept. 1, 2001.


Sec. 161.206. ORDER TERMINATING PARENTAL RIGHTS. (a) If the court finds by clear and convincing evidence grounds for termination of the parent-child relationship, it shall render an order terminating the parent-child relationship.


(a-1) In a suit filed by the Department of Family and Protective Services seeking termination of the parent-child relationship for more than one parent of the child, the court may order termination of the parent-child relationship for the parent only if the court finds by clear and convincing evidence grounds for the termination of the parent-child relationship for that parent.


(b) Except as provided by Section 161.2061, an order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides.


(c) Nothing in this chapter precludes or affects the rights of a biological or adoptive maternal or paternal grandparent to reasonable access under Chapter 153.


(d) An order rendered under this section must include a finding that:


(1) a request for identification of a court of continuing, exclusive jurisdiction has been made as required by Section 155.101; and


(2) all parties entitled to notice, including the Title IV-D agency, have been notified.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 709, Sec. 2, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 751, Sec. 72, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 561, Sec. 1, eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 972 (S.B. 228), Sec. 44, eff. September 1, 2007.


Acts 2017, 85th Leg., R.S., Ch. 317 (H.B. 7), Sec. 13, eff. September 1, 2017.


Sec. 161.2061. TERMS REGARDING LIMITED POST-TERMINATION CONTACT. (a) If the court finds it to be in the best interest of the child, the court may provide in an order terminating the parent-child relationship that the biological parent who filed an affidavit of voluntary relinquishment of parental rights under Section 161.103 shall have limited post-termination contact with the child as provided by Subsection (b) on the agreement of the biological parent and the Department of Family and Protective Services.


(b) The order of termination may include terms that allow the biological parent to:


(1) receive specified information regarding the child;


(2) provide written communications to the child; and


(3) have limited access to the child.


(c) The terms of an order of termination regarding limited post-termination contact may be enforced only if the party seeking enforcement pleads and proves that, before filing the motion for enforcement, the party attempted in good faith to resolve the disputed matters through mediation.


(d) The terms of an order of termination under this section are not enforceable by contempt.


(e) The terms of an order of termination regarding limited post-termination contact may not be modified.


(f) An order under this section does not:


(1) affect the finality of a termination order; or


(2) grant standing to a parent whose parental rights have been terminated to file any action under this title other than a motion to enforce the terms regarding limited post-termination contact until the court renders a subsequent adoption order with respect to the child.


Added by Acts 2003, 78th Leg., ch. 561, Sec. 2, eff. Sept. 1, 2003.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.087, eff. April 2, 2015.


Sec. 161.2062. PROVISION FOR LIMITED CONTACT BETWEEN BIOLOGICAL PARENT AND CHILD. (a) An order terminating the parent-child relationship may not require that a subsequent adoption order include terms regarding limited post-termination contact between the child and a biological parent.


(b) The inclusion of a requirement for post-termination contact described by Subsection (a) in a termination order does not:


(1) affect the finality of a termination or subsequent adoption order; or


(2) grant standing to a parent whose parental rights have been terminated to file any action under this title after the court renders a subsequent adoption order with respect to the child.


Added by Acts 2003, 78th Leg., ch. 561, Sec. 2, eff. Sept. 1, 2003.


Sec. 161.207. APPOINTMENT OF MANAGING CONSERVATOR ON TERMINATION. (a) If the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child. An agency designated managing conservator in an unrevoked or irrevocable affidavit of relinquishment shall be appointed managing conservator.


(b) The order of appointment may refer to the docket number of the suit and need not refer to the parties nor be accompanied by any other papers in the record.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.088, eff. April 2, 2015.


Sec. 161.208. APPOINTMENT OF DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES AS MANAGING CONSERVATOR. If a parent of the child has not been personally served in a suit in which the Department of Family and Protective Services seeks termination, the court that terminates a parent-child relationship may not appoint the Department of Family and Protective Services as permanent managing conservator of the child unless the court determines that:


(1) the department has made a diligent effort to locate a missing parent who has not been personally served and a relative of that parent; and


(2) a relative located by the department has had a reasonable opportunity to request appointment as managing conservator of the child or the department has not been able to locate the missing parent or a relative of the missing parent.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.089, eff. April 2, 2015.


Sec. 161.2081. NOTICE OF TERMINATION FOR CERTAIN RELATIVES. Immediately after a court renders an order terminating the parent-child relationship in a suit filed by the Department of Family and Protective Services, the department shall notify each individual described by Section 102.006(c) who has been identified under Section 262.1095 that:


(1) the parent-child relationship has been terminated; and


(2) the individual has 90 days after the date the order is rendered to file an original suit or a suit for modification requesting managing conservatorship of the child in accordance with Section 102.006(c).


Added by Acts 2021, 87th Leg., R.S., Ch. 710 (H.B. 2926), Sec. 2, eff. September 1, 2021.


Sec. 161.209. COPY OF ORDER OF TERMINATION. A copy of an order of termination rendered under Section 161.206 is not required to be mailed to parties as provided by Rules 119a and 239a, Texas Rules of Civil Procedure.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.


Sec. 161.210. SEALING OF FILE. The court, on the motion of a party or on the court's own motion, may order the sealing of the file, the minutes of the court, or both, in a suit for termination.


Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.


Sec. 161.211. DIRECT OR COLLATERAL ATTACK ON TERMINATION ORDER. (a) Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child or whose rights have been terminated under Section 161.002(b) is not subject to collateral or direct attack after the sixth month after the date the order was signed.


(b) Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed.


(c) A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.


Added by Acts 1997, 75th Leg., ch. 600, Sec. 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 601, Sec. 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1390, Sec. 19, eff. Sept. 1, 1999.


SUBCHAPTER D. REINSTATEMENT OF PARENTAL RIGHTS AFTER INVOLUNTARY TERMINATION



Sec. 161.301. DEFINITIONS. In this subchapter:


(1) "Commissioner" means the commissioner of the Department of Family and Protective Services.


(2) "Department" means the Department of Family and Protective Services.


Added by Acts 2021, 87th Leg., R.S., Ch. 710 (H.B. 2926), Sec. 1, eff. September 1, 2021.


Sec. 161.302. PETITION. (a) The following persons may file a petition under this subchapter requesting the court to reinstate the parental rights of a former parent whose parental rights were involuntarily terminated under Section 161.001 or 161.003:


(1) the department;


(2) the single source continuum contractor under Subchapter B-1, Chapter 264, with responsibility for the child who is the subject of the petition;


(3) the attorney ad litem for the child who is the subject of the petition; or


(4) the former parent whose parental rights were involuntarily terminated.


(b) A petition for the reinstatement of parental rights may be filed under this subchapter only if:


(1) the termination of parental rights resulted from a suit filed by the department;


(2) at least two years have passed since the issuance of the order terminating the former parent's parental rights and an appeal of the order is not pending;


(3) the child has not been adopted;


(4) the child is not the subject of an adoption placement agreement; and


(5) the petitioner has provided the notice required by Subsection (d), if the petitioner is the former parent whose parental rights are sought to be reinstated.


(c) The contents of the petition for reinstatement of parental rights must be sworn by the petitioner and must include:


(1) the name of the petitioner;


(2) the name and current residence address of the former parent whose parental rights are sought to be reinstated, if that former parent is not the petitioner;


(3) the child's name, current residence address, and date and place of birth, if known;


(4) the name, current residence address, and contact information, if known, of any party that:


(A) participated in the original termination hearing; and


(B) has information relevant to the determination of conservatorship of or possession of or access to the child;


(5) a summary of the grounds on which the court rendered the order terminating the former parent's parental rights;


(6) a summary statement of the facts and evidence that the petitioner believes demonstrate that the former parent whose parental rights are sought to be reinstated has the capacity and willingness to perform parental duties under Section 151.001, including steps the former parent has taken toward personal rehabilitation since the rendition of the order terminating parental rights, including mental health and substance abuse treatment, employment, or other personal history that demonstrates rehabilitation;


(7) a statement of the former parent whose parental rights are sought to be reinstated requesting the reinstatement of parental rights;


(8) a statement of the intent or willingness of the child to consent to the reinstatement of parental rights, if the child is 12 years of age or older; and


(9) a summary of all prior requests or motions for reinstatement by the former parent whose parental rights are sought to be reinstated and by the petitioner, if the former parent is not the petitioner, with respect to that child.


(d) Before a former parent whose parental rights have been involuntarily terminated may file a petition for reinstatement under this subchapter, the former parent, at least 45 days before the petition is filed, must notify the department of the former parent's intent to file the petition. The commissioner shall create a form to be used by a former parent for that notice that includes the information listed in Subsection (c). A copy of the notice must be filed with the petition.


(e) The petition for the reinstatement of parental rights and notice of hearing on the petition must be served on:


(1) the child or the child's representative;


(2) the county attorney;


(3) the child's attorney ad litem;


(4) the department or single source continuum contractor, if applicable;


(5) the former parent whose parental rights are sought to be reinstated, if that former parent is not the petitioner; and


(6) if the child is subject to the Indian Child Welfare Act of 1978 (25 U.S.C. Section 1901 et seq.), the designated tribal service agent of the child's tribe and any other person required by federal law.


Added by Acts 2021, 87th Leg., R.S., Ch. 710 (H.B. 2926), Sec. 1, eff. September 1, 2021.


Sec. 161.303. HEARING. (a) A reinstatement hearing under this subchapter must be held not later than the 60th day after the date the petition is filed.


(b) The petitioner has the burden of proof in the hearing, and each party may call witnesses.


(c) The court may grant the petition and order the reinstatement of the former parent's parental rights only if the court finds by a preponderance of the evidence that:


(1) reinstatement of parental rights is in the child's best interests;


(2) at least two years have passed since issuance of the order terminating parental rights and an appeal of the order is not pending;


(3) the child has not been adopted and is not the subject of an adoption placement agreement;


(4) if the child is 12 years of age or older, the child consents to the reinstatement and desires to reside with the parent;


(5) the former parent has remedied the conditions that were grounds for rendering the order terminating parental rights; and


(6) the former parent is willing and has the capability to perform parental duties as provided in Section 151.001, including maintaining the health, safety, and welfare of the child.


(d) In determining whether to grant a petition for reinstatement of parental rights under this subchapter in regard to a child who is 11 years of age or younger on the date the petition is filed, the court shall consider the child's age, maturity, and ability to express a preference and may consider the child's preference regarding the reinstatement as one factor, considered along with all other relevant factors, in making the determination.


Added by Acts 2021, 87th Leg., R.S., Ch. 710 (H.B. 2926), Sec. 1, eff. September 1, 2021.


Sec. 161.304. ORDERS. (a) Following a hearing under this subchapter, the court may render an order:


(1) granting the petition;


(2) denying the petition; or


(3) deferring the decision on the petition and rendering a temporary order expiring after a period of six months during which the department remains the managing conservator of the child and the former parent is the possessory conservator.


(b) If the court defers granting the petition under Subsection (a)(3):


(1) the department shall monitor the possessory conservatorship of the former parent during the period of the temporary order; and


(2) when the temporary order expires, the court shall hold a hearing to determine whether to grant or deny the petition for reinstatement.


(c) If, following a hearing under this subchapter, the court renders an order for reinstatement of parental rights, the court shall enter the court's findings in a written order stating that all legal rights, powers, privileges, immunities, duties, and obligations of the former parent regarding the child, including with respect to custody, care, control, and support, are reinstated.


(d) If, following a hearing under this subchapter, the court denies a petition for reinstatement of parental rights, the court shall render a written order that includes:


(1) the court's findings and detailing reasons for denial of the petition; and


(2) a statement prohibiting the filing of a subsequent petition in regard to the former parent's parental rights before the first anniversary of the date the order of denial was issued.


Added by Acts 2021, 87th Leg., R.S., Ch. 710 (H.B. 2926), Sec. 1, eff. September 1, 2021.

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FAMILY CODE CHAPTER 161. TERMINATION OF THE PARENT-CHILD RELATIONSHIP

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FAMILY CODE TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP SUBTITLE B. SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP CHAPTER 161. TERMINATION OF THE PARENT-CHILD RELATIONSHIP SUBCHAPTER A. GROUNDS Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP.

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The 14th amendment explains that no State should “deprive any person of life, liberty or property, without due process of law" (U.S. Const. amend.  XIV). States are required to have a plan in place to protect children that are being removed from their families.

(U.S. Const. amend.  XIV)

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Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

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The Adoption and Safe Families Act of 1997 ensures that States are taking the necessary steps to protect children in the foster care system.

(Adoption and Safe Families Act of 1997)

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On November 19, 1997, the President signed into law (P.L. 105-89) the Adoption and Safe Families Act of 1997, to improve the safety of children, to promote adoption and other permanent homes for children who need them, and to support families. This new law makes changes and clarifications in a wide range of policies established under the Adoption Assistance and Child Welfare Act (P.L. 96-272), the major federal law enacted in 1980 to assist the states in protecting and caring for abused and neglected children. The new law:

Continues and Expands the Family Preservation and Support Services Program. The Family Preservation and Support Services Program, renamed the Promoting Safe and Stable Families Program, is reauthorized through FY 2001 at the following levels: FY 1999 at $275 million; FY 2000 at $295 million; and FY 2001 at $305 million. The set-asides are maintained for the Court Improvement Program, evaluation, research, training, technical assistance, and Indian tribes. State plans are now also required to contain assurances that in administering and conducting service programs, the safety of the children to be served will be of paramount concern.
The new law further clarifies that for the purposes of the maintenance of effort requirement in the program, "non-federal funds" may be defined as either state or state and local funds. This change is made retroactive to the enactment of the Family Preservation and Support Services Program (P.L. 103-66) on August 10, 1993.
In addition to the funds to prevent child abuse and neglect and to assist families in crisis, the program's funds specifically include time-limited reunification services such as counseling, substance abuse treatment services, mental health services, assistance for domestic violence, temporary child care and crisis nurseries, and transportation to and from these services. Adoption promotion and support services are also included and are defined as pre- and post-adoptive services and activities designed to expedite the adoption process and support families.

Continues Eligibility for the Federal Title IV-E Adoption Assistance Subsidy to Children Whose Adoption is Disrupted. Any child who was receiving a federal adoption subsidy on or after October l, 1997, shall continue to remain eligible for the subsidy if the adoption is disrupted or if the adoptive parents die.

Addresses Geographic Barriers to Adoption. States are required to assure that the state will develop plans for the effective use of cross-jurisdictional resources to facilitate timely permanent placements for children awaiting adoption. The state's Title IV-E foster care and adoption assistance funding is conditioned on the state not denying or delaying a child's adoptive placement, when an approved family is available outside of the jurisdiction with responsibility for the child. Funding is also conditioned upon the state granting opportunities for fair hearings for allegations of violations of the requirements. The U.S. General Accounting Office must study and report to Congress on how to improve procedures and policies to facilitate timely adoptions across state and county lines.

Establishes Kinship Care Advisory Panel. HHS is required to prepare and submit, by June 1, 1999, a report for Congress on the extent of the placement of children in foster care with relatives and to convene an advisory panel on kinship care to review and comment on the report before it is submitted.

Issues Sense of Congress on Standby Guardianship. It is the Sense of Congress that states should have laws and procedures to permit a parent who is chronically ill or near death to designate a standby guardian for their child, without surrendering their own parental rights. The standby guardian's authority would take effect upon the parent's death, mental incapacity, or physical debilitation and consent.

Establishes New Time Line and Conditions for Filing Termination of Parental Rights. Federal law did not require states to initiate termination of parental rights proceedings based on a child's length of stay in foster care. Under the new law, states must file a petition to terminate parental rights and concurrently, identify, recruit, process and approve a qualified adoptive family on behalf of any child, regardless of age, that has been in foster care for 15 out of the most recent 22 months. A child would be considered as having entered foster care on the earlier of either the date of the first judicial finding of abuse or neglect, or 60 days after the child is removed from the home.

This new requirement applies to children entering foster care in the future and to children already in care. For children already in care, states are required to phase in the filing of termination petitions beginning with children for whom the permanency plan is adoption or who have been in care the longest. One-third must be filed within six months of the end of the state's first legislative session following enactment of this law, two-thirds within 12 months and all of them within 18 months. A state must also file such a petition if a court has determined that an infant has been abandoned (as defined in state law) or if a court has determined that a parent of a child has assaulted the child, or killed or assaulted another one of their children. Exceptions can be made to these requirements if: (1) at the state's option, a child is being cared for by a relative; (2) the state agency documents in the case plan which is available for court review, a compelling reason why filing is not in the best interest of the child; or (3) the state agency has not provided to the child's family, consistent with the time period in the case plan, the services deemed necessary to return the child to a safe home.

Directs States to Establish Standards to Ensure Quality Services. By January 1, 1999, states are required to develop and implement standards to ensure that children in foster care placement in public and private agencies are provided quality services that protect the safety and health of the children.

Requires Assessment of State Performance in Protecting Children. HHS will develop in consultation with governors, state legislatures, state and local public officials and child welfare advocates, a set of outcome measures to be used to assess the performance of states in operating child protection and child welfare programs to ensure the safety of children and a system for rating the performance of states with respect to the outcome measures. HHS must submit an annual report to Congress on state performance including recommendations for improvement. The first report is due May 1, 1999. Outcome measures include length of stay in foster care and number of foster placement adoptions; and, to the extent possible, are to be developed from date available from the Adoption and Foster Care Analysis and Reporting System (AFCARS).

Directs Development of Performance-Based Incentive Funding System. HHS, in consultation with public officials and child welfare advocates, is required to develop and recommend to Congress a performance-based incentive system for providing payments under Title IV-B and Title IV-E of the Social Security Act by February 1999, and to submit a progress report on the feasibility, timetable and consultation process for conducting such a study by May 1998.

Expands Child Welfare Demonstration Waivers. Under previous law, HHS has authority to approve up to ten child welfare demonstration waivers. Eight states (CA, DE, IL, IN, MD, NC, OH, OR) have received approval to date. This new law authorizes HHS to conduct up to 10 demonstration projects per year from FY 1998 through 2002. Specific types of demonstrations to be considered include: projects designed to identify and address reasons for delay in adoptive placements for foster children; projects designed to address parental substance abuse problems that endanger children and result in placement of a child in foster care; and projects designed to address kinship care. Eligibility for these waivers is not available if a state fails to provide health insurance coverage to any child with special needs for whom there is in effect an adoption assistance agreement.

Requires Study on the Coordination of Substance Abuse and Child Protection. HHS will prepare a report which describes the extent and scope of the problem of substance abuse in the child welfare population, the types of services provided to this population and the outcomes resulting from the provision of such services, including recommendations for legislation needed to improve coordination in providing such services.

Authorizes the Use of the Federal Parent Locator Service. Child welfare agencies can now use the Federal Parent Locator Service to assist in locating absent parents.

Extends Independent Living Services. Young people who are no longer eligible for federal foster care assistance because their savings and assets exceed $1,000, will still be eligible for independent living services, provided their assets do not exceed $5,000.

Funding Source. The provisions of this law are partially funded ($40 million over four years) from an adjustment to the $2 billion Federal Contingency Fund for State Welfare Programs, created by the 1996 welfare law (P.L. 104-193). HHS is also required to make recommendations to Congress by March 1, 1998, for improving the operation of the Contingency Fund for State Welfare Programs.

Effective Date: The provisions of this new law became effective on November 19, 1997, except for the provisions dealing with termination of parental rights, disrupted adoptions, and the definition of nonfederal funds under family preservation. States have until the close of the next regular session of the state legislature to pass any state laws to comply with the new state plan requirements imposed by this law.

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Summary of the Adoption and Safe Families Act of 1997 (P.L. 105-89)

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On November 19, 1997, the President signed into law (P.L. 105-89) the Adoption and Safe Families Act of 1997, to improve the safety of children, to promote adoption and other permanent homes for children who need them, and to support families.

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Smith v. Organization of Foster Families

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Smith v. Organization of Foster Families

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The court case is about foster parents that sued the Organization of Foster Families because how the foster child was removed from their home, and they believe the state of New York violated the child's Due Process and Equal Protection Clauses of the Fourteenth Amendment. The court ruled in the organizations favor to protect the child.

Smith v. Organization of Foster Families, 431 U.S. 816 (1977)

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U.S. Supreme Court
Smith v. Organization of Foster Families, 431 U.S. 816 (1977)Smith v. Organization of Foster Families for Equality & Reform No. 76-180 Argued March 21, 1977 Decided June 13, 1977431 U.S. 816ast|>* 431 U.S. 816 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
In this litigation appellees, individual foster parents and a foster parents organization, sought declaratory and injunctive relief against New York State and New York City officials, alleging that the statutory and regulatory procedures for removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Under the New York Social Services Law the authorized placement agency has discretion to remove the child from the foster home, and regulations provide for 10 days' advance notice of removal. Objecting foster parents may request a conference with the Social Services Department where the foster parent may appear with counsel to be advised of the reasons for removal and to submit opposing reasons. Within five days after the conference the agency official must render a written decision and send notice to the foster parent and agency. If the child is removed after the conference the foster parent may appeal to the Department of Social Services, where a full adversary administrative hearing takes place, and the resultant determination is subject to judicial review. Removal is not stayed pending the hearing and judicial review. New York City provides additional procedures (SSC Procedure No. 5) to the foregoing statewide scheme, under which, in lieu of or in addition to the conference, the foster parents are entitled to a full trial-type pre-removal hearing if the child is being transferred to another foster home. An additional statewide procedure is provided by N.Y.Soc.Serv.Law § 392 whereby a foster parent may obtain pre-removal judicial review of an agency

Page 431 U. S. 817

decision to remove a child who has been in foster care for 18 months or more. The District Court held that the State's pre-removal procedures are constitutionally defective, and that,

"before a, foster child can be peremptorily transferred . . . to another foster home or to the natural parents . . . The is entitled to [an administrative] hearing at which all concerned parties may present any relevant information. . . ."

Such a hearing would be held automatically, and before an officer free from contact with the removal decision who could order that the child remain with the foster parents. Appellees contended that, when a child has lived in a foster home for a year or more, a psychological tie is created between the child and the foster parents that constitutes the foster family the child's "psychological family," giving the family a "liberty interest" in its survival as a unit that is protected by the Fourteenth Amendment. The District Court, avoiding the "novel" question of whether the foster home is entitled to the same constitutional deference as the biological family, held that the foster child had an independent right to be heard before being condemned to suffer "grievous loss."

1. The District Court erred in finding that the "grievous loss" to the foster child resulting from an improvident removal decision implicated the due process guarantee, as the determining factor is the nature of the interest involved, rather than its weight. Meachum v. Fano, , ; Board of Regents v. Roth, , -571. Pp. -841.

2. The challenged procedures are constitutionally adequate even were it to be assumed that appellees have a protected "liberty interest" under the Fourteenth Amendment. The procedures employed by the State and New York City satisfy the standards for determining the sufficiency of procedural protections, taking into consideration the factors enumerated in Mathews v. Eldridge, , : (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Pp. -856.

418 F. Supp. 277, reversed.

Page 431 U. S. 818

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellees, individual foster parents [ Footnote 1] and an organization of foster parents, brought this civil rights class action pursuant to 42 U.S.C. § 1983 in the United States District Court for

Page 431 U. S. 819

the Southern District of New York, on their own behalf and on behalf of children for whom they have provided homes for a year or more. They sought declaratory and injunctive relief against New York State and New York City officials, [ Footnote 2]

Page 431 U. S. 820

alleging that the procedures governing the removal of foster children from foster homes provided in N.Y.Soc.Serv.Law §§ 383(2) and 400 (McKinney 1976), and in 18 N.Y.C.R.R. § 450.14 (1974) violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. [ Footnote 3] The District

Page 431 U. S. 821

Court appointed independent counsel for the foster children to forestall any possibility of conflict between their interests and the interests asserted by the foster parents. [ Footnote 4] A group of

Page 431 U. S. 822

natural mothers of children in foster care [ Footnote 5] were granted leave to intervene [ Footnote 6] on behalf of themselves and others similarly situated. [ Footnote 7]

A divided three-judge District Court concluded that "the pre-removal procedures presently employed by the State are constitutionally defective," holding that,

"before a foster child can be peremptorily transferred from the foster home in which he has been living, be it to another foster home or to the natural parents who initially placed him in foster care, he is entitled to a hearing at which all concerned parties may present any relevant information to the administrative decisionmaker charged with determining the future placement of the child,"

Organization of Foster Families v. Dumpson, 418 F. Supp. 277, 282 (1976). Four appeals to this Court were taken from the ensuing judgment declaring the challenged statutes unconstitutional and permanently enjoining their

Page 431 U. S. 823

enforcement. The New York City officials are appellants in No. 76-180. The New York State officials are appellants in No. 76-183. Independent counsel appointed for the foster children appeals on their behalf in No. 76-5200. The intervening natural mothers are appellants in No. 76-5193. We noted probable jurisdiction of the four appeals. 429 U.S. 883 (1976). We reverse.
I
A detailed outline of the New York statutory system regulating foster care is a necessary preface to a discussion of the constitutional questions presented.

The expressed central policy of the New York system is that

"it is generally desirable for the child to remain with or be returned to the natural parent because the child's need for a normal family life will usually best be met in the natural home, and . . . parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered,"

Soc.Serv.Law § 384 b(1)(a)(ii) (McKinney Supp. 1976-1977). But the State has opted for foster care as one response to those situations where the natural parents are unable to provide the "positive, nurturing family relationships" and "normal family life in a permanent home" that offer "the best opportunity for children to develop and thrive." §§ 38b(1)(b), (1)(a)(i).

Foster care has been defined as

"[a] child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible."

Child Welfare League of America, Standards for Foster Family Care Service 5 (1959). [ Footnote 8] Thus,

Page 431 U. S. 824

the distinctive features of foster care are, first, "that it is care in a family, it is noninstitutional substitute care," and, second, "that it is for a planned period -- either temporary or extended. This is unlike adoptive placement, which implies a permanent substitution of one home for another." Kadushin 355.

Under the New York scheme children may be placed in foster care either by voluntary placement or by court order. Most foster care placements are voluntary. [ Footnote 9] They occur when physical or mental illness, economic problems, or other family crises make it impossible for natural parents, particularly single parents, to provide a stable home life for their children for some limited period. [ Footnote 10] Resort to such placements

Page 431 U. S. 825

is almost compelled when it is not possible in such circumstance to place the child with a relative or friend or to pay for the services of a homemaker or boarding school.

Voluntary placement requires the signing of a written agreement by the natural parent or guardian, transferring the care and custody of the child to an authorized child welfare agency. [ Footnote 11] N.Y.Soc.Serv.Law § 384 a(1) (McKinney Supp. 1976-1977). Although, by statute, the terms of such agreements are open to negotiation, § 38a(2)(a), it is contended that agencies require execution of standardized forms. Brief for Appellants in No. 76-5193, p. 25 n. 17. See App. 63a-64a, 65a-67a. The agreement may provide for return of the child to the natural parent at a specified date or upon occurrence of a particular event, and if it does not, the child must be returned by the agency, in the absence of a court order, within 20 days of notice from the parent. § 384 a(2)(a). [ Footnote 12]

Page 431 U. S. 826

The agency may maintain the child in an institutional setting, §§ 37b, 37c, 37d (McKinney 1976), but more commonly acts under its authority to "place out and board out" children in foster homes. § 374(1). [ Footnote 13] Foster parents, who are licensed by the State or an authorized foster care agency, §§ 376, 377, provide care under a contractual arrangement with the agency, and are compensated for their services. See 18 N.Y.C.R.R. §§ 606.2, 606.6 (1977); App. 76a, 81a. The typical contract expressly reserves the right of the agency to remove the child on request. 418 F. Supp. at 281; App. 76a, 79a. See N.Y.Soc.Serv.Law § 383(2) (McKinney 1976). [ Footnote 14] Conversely, the foster parent may cancel the agreement at will. [ Footnote 15]

The New York system divides parental functions among agency, foster parents, and natural parents, and the definitions of the respective roles are often complex and often unclear. [ Footnote 16]

Page 431 U. S. 827

The law transfers "care and custody" to the agency, § 38a; see also § 383(2), but day-to-day supervision of the child and his activities, and most of the functions ordinarily associated with legal custody, are the responsibility of the foster parent. [ Footnote 17] Nevertheless, agency supervision of the performance of the foster parents takes forms indicating that the foster parent does not have the full authority of a legal custodian. [ Footnote 18] Moreover, the natural parent's placement of the child with the agency does not surrender legal guardianship; [ Footnote 19] the parent

Page 431 U. S. 828

retains authority to act with respect to the child in certain circumstances. [ Footnote 20] The natural parent has not only the right but the obligation to visit the foster child and plan for his future; failure of a parent with capacity to fulfill the obligation for more than a year can result in a court order terminating the parent's rights on the ground of neglect. §§ 384-b(4), (7). See also § 384-b(5); N.Y.Dom.Rel.Law § 111 (McKinney Supp. 1976-1977); N.Y.Family Court Act § 611 (McKinney Supp. 1976-1977). [ Footnote 21]

Children may also enter foster care by court order. The Family Court may order that a child be placed in the custody of an authorized child care agency after a full adversary judicial hearing under Art. 10 of the New York Family Court Act, if it is found that the child has been abused or neglected by his natural parents. §§ 1052, 1055. In addition, a minor adjudicated a juvenile delinquent, or "person in need of supervision" may be placed by the court with an agency. §§ 753, 754, 756. The consequences of foster care placement by court order do not differ substantially from those for children voluntarily placed, except that the parent is not entitled to return of the child on demand pursuant to Soc.Serv.Law § 384-a(2)(a); termination of foster care must then be consented to by the court. § 383(1). [ Footnote 22]

Page 431 U. S. 829

The provisions of the scheme specifically at issue in this litigation come into play when the agency having legal custody determines to remove the foster child from the foster home, either because it has determined that it would be in the child's best interests to transfer him to some other foster home, or to return the child to his natural parents in accordance with the statute or placement agreement. Most children are removed in order to be transferred to another foster home. [ Footnote 23] The procedures by which foster parents may challenge a removal made for that purpose differ somewhat from those where the removal is made to return the child to his natural parent.

Section 383(2), n. 3, supra, provides that the

"authorized agency placing out or boarding [a foster] child . . . may in its discretion remove such child from the home where placed or boarded."

Administrative regulations implement this provision. The agency is required, except in emergencies, to notify the foster parents in writing 10 days in advance of any removal. 18 N.Y.C.R.R. § 450.10(a) (1976). [ Footnote 24] The notice advises the foster parents that, if they object to the child's removal, they may request a "conference" with the Social Services Department. Ibid. The department schedules requested conferences within 10 days of the receipt of the request. § 450.10(b). The foster parent may appear with counsel at the conference, where he will

"be advised of the

Page 431 U. S. 830

reasons [for the removal of the child] and be afforded an opportunity to submit reasons why the child should not be removed."

§ 450.10(a). [ Footnote 25] The official must render a decision in writing within five days after the close of the conference, and send notice of his decision to the foster parents and the agency. § 450.10(c). The proposed removal is stayed pending the outcome of the conference. § 450.10(d).

If the child is removed after the conference, the foster parent may appeal to the Department of Social Services for a "fair hearing," that is, a full adversary administrative hearing, under Soc.Serv.Law § 400, [ Footnote 26] the determination of which is subject to judicial review under N.Y.Civ.Prac.Law § 7801 et seq. (McKinney 1963); however, the removal is not automatically stayed pending the hearing and judicial review. [ Footnote 27]

This statutory and regulatory scheme applies statewide. [ Footnote 28]

Page 431 U. S. 831

In addition, regulations promulgated by the New York City Human Resources Administration, Department of Social Services -- Special Services for Children (SSC) provide even greater procedural safeguards there. Under SSC Procedure No. 5 (Aug. 5, 1974), in place of or in addition to the conference provided by the state regulations, the foster parents may request a full trial-type hearing before the child is removed from their home. This procedure applies, however, only if the child is being transferred to another foster home, and not if the child is being returned to his natural parents. [ Footnote 29]

One further pre-removal procedural safeguard is available. Under Soc.Serv.Law § 392, the Family Court has jurisdiction to review, on petition of the foster parent or the agency, the status of any child who has been in foster care for 18 months or longer. [ Footnote 30] The foster parents, the natural parents, and all

Page 431 U. S. 832

interested agencies are made parties to the proceeding. § 392(4). After hearing, the court may order that foster care be continued, or that the child be returned to his natural parents, or that the agency take steps to free the child for adoption. [ Footnote 31] § 392(7). Moreover, § 392(8) authorizes the court to issue an "order of protection" which "may set forth reasonable conditions of behavior to be observed for a specified time by a person or agency who is before the court." Thus, the court may order not only that foster care be continued, but, additionally, "in assistance or as a condition of" that order, that the agency leave the child with the present foster parent. [ Footnote 32] In other words, § 392 provides a mechanism whereby a foster parent may obtain pre-removal judicial review of an agency's decision to remove a child who has been in foster care for 18 months or more.

Page 431 U. S. 833

Foster care of children is a sensitive and emotion-laden subject, and foster care programs consequently stir strong controversy. The New York regulatory scheme is no exception. New York would have us view the scheme as described in its brief:

"Today New York premises its foster care system on the accepted principle that the placement of a child into foster care is solely a temporary, transitional action intended to lead to the future reunion of the child with his natural parent or parents, or if such a reunion is not possible, to legal adoption and the establishment of a new permanent home for the child."

Brief for Appellants in No. 76-183, p. 3. Some of the parties and amici argue that this is a misleadingly idealized picture. They contend that a very different perspective is revealed by the empirical criticism of the system presented in the record of this case and confirmed by published studies of foster care.

From the standpoint of natural parents, such as the appellant intervenors here, foster care has been condemned as a class-based intrusion into the family life of the poor. See, e.g., Jenkins, Child Welfare as a Class System, in Children and Decent People 3 (A. Schorr ed.1974). And see generally tenBroek, California's Dual System of Family Law: Its Origins, Development and Present Status (pt. I), 16 Stan.L.Rev. 257 (1964); (pt. II), 16 Stan.L.Rev. 900 (1964); (pt. III), 17 Stan.L.Rev. 614 (1965). It is certainly true that the poor resort to foster care more often than other citizens. For example, over 50% of all children in foster care in New York City are from female-headed families receiving Aid to Families with Dependent Children. Foundation for Child Development, State of the Child: New York City 61 (1976). Minority families are also more likely to turn to foster

Page 431 U. S. 834

care; 52.3% of the children in foster care in New York City are black and 25.5% are Puerto Rican. Child Welfare Information Services, Characteristics of Children in Foster Care, New York City Reports, Table No. 2 (Dec. 31, 1976). [ Footnote 33] This disproportionate resort to foster care by the poor and victims of discrimination doubtless reflects in part the greater likelihood of disruption of poverty-stricken families. Commentators have also noted, however, that middle- and upper-income families who need temporary care services for their children have the resources to purchase private care. See, e.g., Rein, Nutt, & Weiss 24, 25. The poor have little choice but to submit to state-supervised child care when family crises strike. Id. at 34.

The extent to which supposedly "voluntary" placements are in fact voluntary has been questioned on other grounds as well. For example, it has been said that many "voluntary" placements are in fact coerced by threat of neglect proceedings, [ Footnote 34] and are not in fact voluntary in the sense of the product of an informed consent. Mnookin I 599, 601. Studies also suggest that social workers of middle-class backgrounds, perhaps unconsciously, incline to favor continued placement in foster care with a generally higher-status family rather than return the child to his natural family, thus reflecting a bias that treats the natural parents' poverty and lifestyle as prejudicial to the best interests of the child. Rein, Nutt, & Weiss 42-44; Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U.Pitt.L.Rev. 1, 29 (1973). This accounts, [ Footnote 35] it has been said, for the hostility of agencies to the

Page 431 U. S. 835

efforts of natural parents to obtain the return of their children. [ Footnote 36]

Appellee foster parents, as well as natural parents, question the accuracy of the idealized picture portrayed by New York. They note that children often stay in "temporary" foster care for much longer than contemplated by the theory of the system. See, e.g., Kadushin 411-412; Mnookin I 610-613; Wald 662-663; Rein, Nutt, & Weiss 37-39. [ Footnote 37] The

Page 431 U. S. 836

District Court found as a fact that the median time spent in foster care in New York was over four years. 418 F. Supp. at 281. Indeed, many children apparently remain in this "limbo" indefinitely. Mnookin II 226, 273. The District Court also found that the longer a child remains in foster care, the more likely it is that he will never leave: "[T]he probability of a foster child being returned to his biological parents declined markedly after the first year in foster care." 418 F. Supp. at 279 n. 6. See also E. Sherman, R. Neuman, & A. Shyne, Children Adrift in Foster Care: A Study of Alternative Approaches 3 (1973); Fanshel, The Exit of Children from Foster Care: An Interim Research Report, 50 Child Welfare 65, 67 (1971). It is not surprising, then, that many children, particularly those that enter foster care at a very early age, [ Footnote 38] and have little or no contact with their natural parents during extended stays in foster care, [ Footnote 39] often develop deep emotional ties with their foster parents. [ Footnote 40]

Page 431 U. S. 837

Yet such ties do not seem to be regarded as obstacles to transfer of the child from one foster placement to another. The record in this case indicates that nearly 60% of the children in foster care in New York City have experienced more than one placement, and about 28% have experienced three or more. App. 189a. See also Wald 645-646; Mnookin I 625-626. The intended stability of the foster-home management is further damaged by the rapid turnover among social work professionals who supervise the foster care arrangements on behalf of the State. Id. at 625; Rein, Nutt, & Weiss 41; Kadushin 420. Moreover, even when it is clear that a foster child will not be returned to his natural parents, it is rare that he achieves a stable home life through final termination of parental ties and adoption into a new permanent family. Fanshel, Status Changes of Children in Foster Care: Final

Page 431 U. S. 838

Results of the Columbia University Longitudinal Study, 55 Child Welfare 143, 145, 157 (1976); Mnookin II 275-277; Mnookin I 612-613. See also n 23, supra.

The parties and amici devote much of their discussion to these criticisms of foster care, and we present this summary in the view that some understanding of those criticisms is necessary for a full appreciation of the complex and controversial system with which this lawsuit is concerned. [ Footnote 41] But the issue presented by the case is a narrow one. Arguments asserting the need for reform of New York's statutory scheme are properly addressed to the New York Legislature. The relief sought in this case is entirely procedural. Our task is only to determine whether the District Court correctly held that the present procedure preceding the removal from a foster home of children resident there a year or more are constitutionally inadequate. To that task we now turn.
II
Our first inquiry is whether appellees have asserted interests within the Fourteenth Amendment's protection of

Page 431 U. S. 839

The appellees have not renewed in this Court their contention, rejected by the District Court, 418 F. Supp. at 280-281, that the realities of the foster care system in New York gave them a justified expectation amounting to a "property" interest that their status as foster parents would be continued. [ Footnote 42] Our inquiry is therefore narrowed to the question whether their asserted interests are within the "liberty" protected by the Fourteenth Amendment.

The appellees' basic contention is that, when a child has lived in a foster home for a year or more, a psychological tie is created between the child and the foster parents which constitutes the foster family the true "psychological family" of the child. See J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child (1973). That family, they argue, has a "liberty interest" in its survival as a family protected by the Fourteenth Amendment. Cf. Moore v. East Cleveland, ante p. . Upon this premise, they conclude that the foster child cannot be removed without a prior hearing satisfying due process. Appointed counsel for the children, appellants in No. 76-5200, however, disagrees, and has consistently argued that the foster parents have no such liberty interest independent of the interests of the foster children, and that the best interests of the children would not be served by procedural protections beyond those already provided by New York law. The intervening natural parents of children in foster care, appellants in No. 76-5193, also oppose the foster parents, arguing that recognition of the procedural right claimed would undercut both the substantive family law of New York, which favors the return of children to their natural parents as expeditiously as possible, see supra at ,

Page 431 U. S. 840

and their constitutionally protected right of family privacy, by forcing them to submit to a hearing and defend their rights to their children before the children could be returned to them.

The District Court did not reach appellees' contention "that the foster home is entitled to the same constitutional deference as that long granted to the more traditional biological family." 418 F. Supp. at 281. Rather than "reach[ing] out to decide such novel questions," the court based its holding that "the pre-removal procedures presently employed by the state are constitutionally defective," id. at 282, not on the recognized liberty interest in family privacy, but on an independent right of the foster child

The court apparently reached this conclusion by weighing the "harmful consequences of a precipitous and perhaps improvident decision to remove a child from his foster family," id. at 283, and concluding that this disruption of the stable relationships needed by the child might constitute "grievous loss." But if this was the reasoning applied by the District Court, it must be rejected. [ Footnote 43] Meachum v. Fano, , (1976), is authority that such a finding does not, in and of itself, implicate the due process guarantee. What was said in Board of Regents v. Roth, supra at -571, applies equally well here:

"The District Court decided that procedural due process guarantees apply in this case by assessing and balancing

Page 431 U. S. 841

the weights of the particular interests involved. . . . [A] weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property. [ Footnote 44] "

Page 431 U. S. 842

We therefore turn to appellees' assertion that they have a constitutionally protected liberty interest -- in the words of the District Court, a "right to familial privacy," 418 F. Supp. at 279 -- in the integrity of their family unit. [ Footnote 45] This assertion clearly presents difficulties.

It is, of course, true that "freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, , -640 (1974). There does exist a "private realm of family life which the state cannot enter," Prince v. Massachusetts, , (1944), that has been afforded both substantive [ Footnote 46] and procedural [ Footnote 47] protection. But is the relation of foster parent to foster child sufficiently akin to the concept of "family" recognized in our precedents to merit similar protection? [ Footnote 48] Although considerable difficulty has attended the task of defining "family" for purposes of the Due Process

Page 431 U. S. 843

Clause, see Moore v. East Cleveland, ante pp. (plurality opinion of POWELL, J.), (STEWART, J., dissenting), (WHITE, J., dissenting), we are not without guides to some of the elements that define the concept of "family" and contribute to its place in our society.

First, the usual understanding of "family" implies biological relationships, and most decisions treating the relation between parent and child have stressed this element. Stanley v. Illinois, , (1972), for example, spoke of "[t]he rights to conceive and to raise one's children" as essential rights, citing Meyer v. Nebraska, (1923), and Skinner v. Oklahoma ex rel. Williamson, (1942). And Prince v. Massachusetts stated:

"It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."

A biological relationship is not present in the case of the usual foster family. But biological relationships are not exclusive determination of the existence of a family. [ Footnote 50] The basic foundation of the family in our society, the marriage relationship, is of course not a matter of blood relation. Yet its importance has been strongly emphasized in our cases:

"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better

Page 431 U. S. 844

or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

Thus the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in "promot[ing] a way of life" through the instruction of children, Wisconsin v. Yoder, , -233 (1972), as well as from the fact of blood relationship. No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship. [ Footnote 51] At least where a child has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents, it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family. [ Footnote 52] For this reason, we cannot dismiss the foster family as a mere collection of unrelated individuals.

Page 431 U. S. 845

But there are also important distinctions between the foster family and the natural family. First, unlike the earlier cases recognizing a right to family privacy, the State here seeks to interfere not with a relationship having its origins entirely apart from the power of the State, but rather with a foster family which has its source in state law and contractual arrangements. The individual's freedom to marry and reproduce is "older than the Bill of Rights," Griswold v. Connecticut, supra at . Accordingly, unlike the property interests that are also protected by the Fourteenth Amendment, cf. Board of Regents v. Roth, 408 U.S. at , the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, [ Footnote 53] but in intrinsic human rights, as they have been understood in "this Nation's history and tradition." Moore v. East Cleveland, ante at . Cf. also Meachum v. Fano, 427 U.S. at (STEVENS, J., dissenting). Here, however, whatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset. While the Court has recognized that liberty interests may in some cases arise from positive law sources, see, e.g., Wolff v. McDonnell, , (1974), in such a case, and particularly where, as here, the claimed interest derives from a knowingly assumed contractual relation with the State, it is appropriate to ascertain

Page 431 U. S. 846

from state law the expectations and entitlements of the parties. In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional "liberty" in the foster family.

A second consideration related to this is that ordinarily procedural protection may be afforded to a liberty interest of one person without derogating from the substantive liberty of another. Here, however, such a tension is virtually unavoidable. Under New York law, the natural parent of a foster child in voluntary placement has an absolute right to the return of his child in the absence of a court order obtainable only upon compliance with rigorous substantive and procedural standards, which reflect the constitutional protection accorded the natural family. See nn. 46 47 supra. Moreover, the natural parent initially gave up his child to the State only on the express understanding that the child would be returned in those circumstances. These rights are difficult to reconcile with the liberty interest in the foster family relationship claimed by appellees. It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they have freely entered, even in the absence of biological connection or state law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another's constitutionally recognized liberty interest that derives from blood relationship, state law sanction, and basic human right -- an interest the foster parent has recognized by contract from the outset. [ Footnote 54] Whatever liberty interest might otherwise exist in the

Page 431 U. S. 847

foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.

As this discussion suggests, appellees' claim to a constitutionally protected liberty interest raises complex and novel questions. It is unnecessary for us to resolve those questions definitively in this case, however, for, like the District Court, we conclude that "narrower grounds exist to support" our reversal. We are persuaded that, even on the assumption that appellees have a protected "liberty interest," the District Court erred in holding that the pre-removal procedures presently employed by the State are constitutionally defective.
III
Where procedural due process must be afforded because a "liberty" or "property" interest is within the Fourteenth Amendment's protection, there must be determined "what process is due" in the particular context. The District Court did not spell out precisely what sort of pre-removal hearing would be necessary to meet the constitutional standard, leaving to

"the various defendants -- state and local officials -- the first opportunity to formulate procedures suitable to their own professional needs and compatible with the principles set forth in this opinion."

418 F. Supp. at 286. The court's opinion, however, would seem to require, at a minimum, that in all cases in which removal of a child within the certified class is contemplated, including the situation where the removal is for the purpose of returning the child to his natural parents, a hearing be held automatically, regardless of whether or not the foster parents request a hearing; [ Footnote 55] that the hearing be

Page 431 U. S. 848

before an officer who has had no previous contact with the decision to remove the child, and who has authority to order that the child remain with the foster parents; and that the agency, the foster parents, and the natural parents, as well as the child, if he is able intelligently to express his true feelings, and an independent representative of the child's interests, if he is not, be represented and permitted to introduce relevant evidence.

It is true that,

"[b]efore a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.'"

Board of Regents v. Roth, 408 U.S. at n. 7, quoting Boddie v. Connecticut, , (1971). But the hearing required is only one "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., , (1950). See, e.g., Bell v. Burson, , (1971); Goldberg v. Kelly, , (1970); Cafeteria Workers v. McElroy, , (1961). "[D]ue process is flexible, and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, , (1972). Only last Term, the Court held that

"identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional

Page 431 U. S. 849

or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."

Turning first to the procedure applicable in New York City, SSC Procedure No. 5, see supra at , and n. 29, provides that before a child is removed from a foster home for transfer to another foster home, the foster parents may request an "independent review." The District Court's description of this review is set out in the margin. [ Footnote 56] Such a procedure would appear to give a more elaborate trial-type hearing to foster families than this Court has found required in other contexts of administrative determinations. Cf. Goldberg v. Kelly, supra at -271. The District Court found the procedure inadequate on four grounds, none of which we find sufficient to justify the holding that the procedure violates due process.

Page 431 U. S. 850

First, the court held that the "independent review" administrative proceeding was insufficient because it was only available on the request of the foster parents. In the view of the District Court, the proceeding should be provided as a matter of course, because the interests of the foster parents and those of the child would not necessarily be coextensive, and it could not be assumed that the foster parents would invoke the hearing procedure in every case in which it was in the child's interest to have a hearing. Since the child is unable to request a hearing on his own, automatic review in every case is necessary. We disagree. As previously noted, the constitutional liberty, if any, sought to be protected by the New York procedures is a right of family privacy or autonomy, and the basis for recognition of any such interest in the foster family must be that close emotional ties analogous to those between parent and child are established when a child resides for a lengthy period with a foster family. If this is so, necessarily we should expect that the foster parents will seek to continue the relationship to preserve the stability of the family; if they do not request a hearing, it is difficult to see what right or interest of the foster child is protected by holding a hearing to determine whether removal would unduly impair his emotional attachments to a foster parent who does not care enough about the child to contest the removal. [ Footnote 57] Thus, consideration of the interest to be protected and the likelihood of erroneous deprivations, [ Footnote 58] the first two

Page 431 U. S. 851

factors identified in Mathews v. Eldridge, supra, as appropriate in determining the sufficiency of procedural protections, do not support the District Court's imposition of this additional requirement. Moreover, automatic provision of hearings as required by the District Court would impose a substantial additional administrative burden on the State. According to appellant city officials, during the approximately two years between the institution of SSC Procedure No. 5 in August, 1974, and June, 1976, there were approximately 2,800 transfers per year in the city, but only 26 foster parents requested hearings. Brief for Appellants in No. 76-180, pp. 20-21. It is not at all clear what would be gained by requiring full hearings in the more than 5,500 cases in which they were not requested.

Second, the District Court faulted the city procedure on the ground that participation is limited to the foster parents and the agency, and the natural parent and the child are not made parties to the hearing. This is not fatal in light of the nature of the alleged constitutional interests at stake. When the child's transfer from one foster home to another is pending, the interest arguably requiring protection is that of the foster family, not that of the natural parents. Moreover, the natural parent can generally add little to the accuracy of factfinding concerning the wisdom of such a transfer, since the foster parents and the agency, through its caseworkers, will usually be most knowledgeable about conditions in the foster home. Of course, in those cases where the natural parent does have a special interest in the proposed transfer

Page 431 U. S. 852

or particular information that would assist the factfinder, nothing in the city's procedure prevents any party from securing his testimony.

Much the same can be said in response to the District Court's statement:

"[I]t may be advisable, under certain circumstances, for the agency to appoint an adult representative better to articulate the interests of the child. In making this determination, the agency should carefully consider the child's age, sophistication and ability effectively to communicate his own true feelings."

418 F. Supp. at 285-286. But nothing in the New York City procedure prevents consultation of the child's wishes, directly or through an adult intermediary. We assume, moreover, that some such consultation would be among the first steps that a rational factfinder, inquiring into the child's best interests, would pursue. Such consultation, however, does not require that the child or an appointed representative must be a party with full adversary powers in all pre-removal hearings. [ Footnote 59]

Page 431 U. S. 853

The other two defects in the city procedure found by the District Court must also be rejected. One is that the procedure does not extend to the removal of a child from foster care to be returned to his natural parent. But as we have already held, whatever liberty interest may be argued to exist in the foster family is significantly weaker in the case of removals preceding return to the natural parent, and the balance of due process interests must accordingly be different. If the city procedure is adequate where it is applicable, it is no criticism of the procedure that it does not apply in other situations where different interests are at stake. Similarly, the District Court pointed out that the New York City procedure coincided with the informal "conference" and post-removal hearings provided as a matter of state law. This overlap in procedures may be unnecessary or even to some degree unwise, see id. at 285, but a State does not violate the Due Process Clause by providing alternative or additional procedures beyond what the Constitution requires.

Outside New York City, where only the statewide procedures apply, foster parents are provided not only with the procedures of a pre-removal conference and post-removal hearing provided by 18 N.Y.C.R.R. § 450.10 (1976) and Soc.Serv.Law § 400 (McKinney 1976), see supra at -830, but also with the pre-removal judicial hearing available on request to foster parents who have in their care children who have been in foster care for 18 months or more, Soc.Serv.Law § 392. As observed supra at , and n. 32, a foster parent in such case may obtain an order that the child remain in his care.

The District Court found three defects in this full judicial process. First, a § 392 proceeding is available only to those foster children who have been in foster care for 18 months or more. The class certified by the court was broader, including

Page 431 U. S. 854

children who had been in the care of the same foster parents for more than one year. Thus, not all class members had access to the § 392 remedy. [ Footnote 60] We do not think tat the 18-month limitation on § 392 actions renders the New York scheme constitutionally inadequate. The assumed liberty interest to be protected in this case is one rooted in the emotional attachments that develop over time between a child and the adults who care for him. But there is no reason to assume that those attachments ripen at less than 18 months, or indeed at any precise point. Indeed, testimony in the record, see App. 177a, 204a, as well as material in published psychological texts, see, e.g., J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child 442, 49 (1973), suggests that the amount of time necessary for the development of the sort of tie appellees seek to protect varies considerably depending on the age and previous attachments of the child. In a matter of such imprecision and delicacy, we see no justification for the District Court's substitution of its view of the appropriate cutoff date for that chosen by the New York Legislature, given that any line is likely to be somewhat arbitrary and fail to protect some families where relationships have developed quickly while protecting others where no such bonds have formed. If New York sees 18 months, rather than 12, as the time at which temporary foster care begins to turn into a more permanent and family-like setting requiring procedural protection and/or judicial inquiry into the propriety of continuing foster care, it would take far more than this record

Page 431 U. S. 855

provides to justify a finding of constitutional infirmity in New York's choice.

The District Court's other two findings of infirmity in the 392 procedure have already been considered and held to be without merit. The District Court disputed defendants' reading of § 392 as permitting an order requiring the leaving of the foster child in the same foster home. The plain words of the statute and the weight of New York judicial interpretation do not support the court. See supra at , and n. 32. The District Court also faulted § 392, as it did the New York City procedure, in not providing an automatic hearing in every case even in cases where foster parents chose not to seek one. Our holding sustaining the adequacy of the city procedure, supra at -851, applies in this context as well. [ Footnote 61]

Finally, the § 392 hearing is available to foster parents, both in and outside New York City, even where the removal sought is for the purpose of returning the child to his natural parents. Since this remedy provides a sufficient constitutional pre-removal hearing to protect whatever liberty interest might exist in the continued existence of the foster family when the State seeks to transfer the child to another foster home, a fortiori the procedure is adequate to protect the lesser interest of the foster family in remaining together at the expense of the disruption of the natural family.

We deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of courts called upon to

Page 431 U. S. 856

adjudicate whether a particular procedural scheme is adequate under the Constitution. Since we hold that the procedures provided by New York State in § 392 and by New York City's SSC Procedure No. 5 are adequate to protect whatever liberty interests appellees may have, the judgment of the District Court is

* Together with No. 76-183, Shapiro, Executive Director, New York State Board of Social Welfare, et al. v. Organization of Foster Families for Equality & Reform et al.; No. 76-5193, Rodriguez et al. v. Organization of Foster Families for Equality & Reform et al.; and No. 76-5200, Gandy et al. v. Organization of Foster Families for Equality & Reform et al., also on appeal from the same court.

Appellee Madeleine Smith is the foster parent with whom Eric and Danielle Gandy have been placed since 1970. The Gandy children, who are now 12 and 9 years old, respectively, were voluntarily placed in foster care by their natural mother in 1968, and have had no contact with her at least since being placed with Mrs. Smith. The foster care agency has sought to remove the children from Mrs. Smith's care because her arthritis, in the agency's judgment, makes it difficult for her to continue to provide adequate care. A foster care review proceeding under N.Y.Soc.Serv.Law § 392 (McKinney 1976), see infra at -832, resulted in an order, subsequent to the decision of the District Court, directing that foster care be continued and apparently contemplating, though not specifically ordering, that the children will remain in Mrs. Smith's care. In re Gandy, Nos. K-2663/74S, K-2664/74S (Fam.Ct.N.Y.Cty., Nov. 22, 1976).

Appellees Ralph and Christiane Goldberg were the foster parents of Rafael Serrano, now 14. His parents placed him in foster care voluntarily in 1969 after an abuse complaint was filed against them. It is alleged that the agency supervising the placement had informally indicated to Mr. and Mrs. Goldberg that it intended to transfer Rafael to the home of his aunt in contemplation of permanent placement. This effort has apparently failed. A petition for foster care review under Soc.Serv.Law § 392 filed by the agency alleges that the Goldbergs are now separated, Mrs. Goldberg having moved out of the house, taking her own child but leaving Rafael. The child is now in a residential treatment center, where Mr. Goldberg continues to visit him. App. to Reply Brief for Appellants in No. 76-180.

Appellees Walter and Dorothy Lhotan were foster parents of the four Wallace sisters, who were voluntarily placed in foster care by their mother in 1970. The two older girls were placed with the Lhotans in that year, their two younger sisters in 1972. In June 1974, the Lhotans were informed that the agency had decided to return the two younger girls to their mother and transfer the two older girls to another foster home. The agency apparently felt that the Lhotans were too emotionally involved with the girls, and were damaging the agency's efforts to prepare them to return to their mother. The state courts have ordered that all the Wallace children be returned to their mother, State ex rel. Wallace v. Lhotan, 51 App.Div.2d 252, 380 N.Y.S.2d 250, appeal dismissed and leave to appeal denied, 39 N.Y.2d 705 (1976). We are told that the children have been returned and are adjusting successfully. Reply Brief for Appellants in No. 76-5200, pp. 1a-10a.

Defendants in the District Court included various' New York State and New York City child welfare officials, and officials of a voluntary child care agency and the Nassau County Department of Social Services. The latter two defendants have not appealed.

New York Soc.Serv.Law § 383(2) (McKinney 1976) provides:

"The custody of a child placed out or boarded out and not legally adopted or for whom legal guardianship has not been granted shall be vested during his minority, or until discharged by such authorized agency from its care and supervision, in the authorized agency placing out or boarding out such child and any such authorized agency may in its discretion remove such child from the home where placed or boarded."

New York Soc.Serv.Law § 400 (McKinney 1976) provides:

"Removal of children"

"1. When any child shall have been placed in an institution or in a family home by a commissioner of public welfare or a city public welfare officer, the commissioner or city public welfare officer may remove such child from such institution or family home and make such disposition of such child as is provided by law."

"2. Any person aggrieved by such decision of the commissioner of public welfare or city welfare officer may appeal to the department, which upon receipt of the appeal shall review the case, shall give the person making the appeal an opportunity for a fair hearing thereon and within thirty days render its decision. The department may also, on its own motions, review any such decision made by the public welfare official. The department may make such additional investigation as it may deem necessary. All decisions of the department shall be binding upon the public welfare district involved and shall be complied with by the public welfare officials thereof."

Title 18 N.Y.C.R.R. § 450.14, which was renumbered § 450.10 as of September 18, 1974, provides:

"Removal from foster family care. (a) Whenever a social services official of another authorized agency acting on his behalf proposes to remove a child in foster family care from the foster family home, he or such other authorized agency, as may be appropriate, shall notify the foster family parents, in writing of the intention to remove such child at least 10 days prior to the proposed effective date of such removal, except where the health or safety of the child requires that he be removed immediately from the foster family home. Such notification shall further advise the foster family parents that they may request a conference with the social services official or a designated employee of his social services department at which time they may appear, with or without a representative to have the proposed action reviewed, be advised of the reasons therefor and be afforded an opportunity to submit reasons why the child should not be removed. Each social services official shall instruct and require any authorized agency acting on his behalf to furnish notice in accordance with the provisions of this section. Foster parents who do not object to the removal of the child from their home may waive in writing their right to the 10 day notice, provided, however, that such waiver shall not be executed prior to the social services official's determination to remove the child from the foster home and notifying the foster parents thereof."

"(b) Upon the receipt of a request for such conference, the social services official shall set a time and place for such conference to be held within 10 days of receipt of such request and shall send written notice of such conference to the foster family parents and their representative, if any, and to the authorized agency, if any, at least five days prior t the date of such conference."

"(c) The social services official shall render and issue his decision as expeditiously as possible but not later than five days after the conference and shall send a written notice of his decision to the foster family parents and their representative, if any, and to the authorized agency, if any. Such decision shall advise the foster family parents of their right to appeal to the department and request a fair hearing in accordance with section 400 of the Social Services Law."

"(d) In the event there is a request for a conference, the child shall not be removed from the foster family home until at least three days after the notice of decision is sent, or prior to the proposed effective date of removal, whichever occurs later."

"(e) In any agreement for foster care between a social services official or another authorized agency acting on his behalf and foster parents, there shall be contained therein a statement of a foster parent's rights provided under this section."

Joint App. to Jurisdictional Statements 54a. See Organization of Foster Families v. Dumpson, 418 F. Supp. 277, 278 (SDNY 1976).

Intervenor Naomi Rodriguez, who is blind, placed her newborn son Edwin in foster care in 1973 because of marital difficulties. When Mrs. Rodriguez separated from her husband three months later, she sought return of her child. Her efforts over the next nine months to obtain return of the child were resisted by the agency, apparently because it felt her handicap prevented her from providing adequate care. Eventually, she sought return of her child in the state courts, and finally prevailed, three years after she first sought return of the child. Rodriguez v. Dumpson, 52 App Div.2d 299, 383 N.Y.S.2d 833 (1976). The other named intervenors describe similar instances of voluntary placements during family emergencies followed by lengthy and frustrating attempts to get their children back.

The intervening natural parents argue in this Court that the District Court erred in not permitting them to raise certain defenses. In view of our disposition of the case, we find it unnecessary to reach this issue.

In an opinion handed down at the same time as its decision on the merits, the District Court granted class certification to appellee foster parents, the named children, and the intervening natural parents. Joint App. to Jurisdictional Statements 42a. See Organization of Foster Families v. Dumpson, supra at 278 n. 3. Appellants in No. 76-5193 challenge the class certification of the children. We perceive no error.

The term "foster care" is often used more generally to apply to any type of care that substitutes others for the natural parent in the parental role, including group homes, adoptive homes, and institutions, as well as foster family homes. A. Kadushin, Child Welfare Services 355 (1967) (hereafter Kadushin). Cf. Mnookin, Foster Care -- In Whose Best Interests?, 43 Harv.Educ.Rev. 599, 600 (1973) (hereafter Mnookin I). Since this case is only concerned with children in foster family homes, the term will generally be used here in the more restricted sense defined in the text.

The record indicates that as many as 80% of the children in foster care in New York City are voluntarily placed. Deposition of Prof. David Fanshel, App. 178a. But cf. Child Welfare Information Services, Characteristics of Children in Foster Care, New York City Reports, Table No. 11 (Dec. 31, 1976). Other studies from New York and elsewhere variously estimate the percentage of voluntary placements between 50% and 90%. See, e.g., Mnookin I 601; Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Neglect and Abuse Cases, 63 Geo.L.J. 887, 921-922, and n. 185 (1975); Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U. Pitt.L.Rev. 1, 29 (1973).

[ Footnote 10]

Experienced commentators have suggested that typical parents in this situation might be

"[a] divorced parent in a financial bind, an unwed adolescent mother still too immature to rear a child, or a welfare mother confronted with hospitalization, and therefore temporarily incapable of caring for her child."

Weiss & Chase, The Case for Repeal of Section 383 of the New York Social Services Law, 4 Colum. Human Rights L.Rev. 325, 326 (1972). A leading text on child care services suggests that "[family] disruption, marginal economic circumstances, and poor health" are principal factors leading to placement of children in foster care. Kadushin 366. Other studies suggest, however, that neglect, abuse, abandonment and exploitation of children, which presumably account for most of the children who enter foster care by court order, see infra at , are also involved in many cases of voluntary placement. See infra at ; Kadushin 366.

[ Footnote 11]

"Authorized agency" is defined in N.Y.Soc.Serv.Law § 371(10) (McKinney 1976), and

"includes any local public welfare children's bureau, such as the defendants New York City Bureau of Child Welfare and Nassau County Children's Bureau, and any voluntary child care agency under the supervision of the New York State Board of Social Welfare, such as the defendant Catholic Guardian Society of New York."

418 F. Supp. at 278 n. 5.

An amicus curiae brief states that, in New York City, 85% of the children in foster care are placed with voluntary child care agencies licensed by the State, while most children in foster care outside New York City are placed directly with the local Department of Social Services. Brief for Legal Aid Society of City of New York, Juvenile Rights Division, as Amicus Curiae 14 n. 22.

[ Footnote 12]

Before enactment of § 384-a in 1975, the natural parent who had voluntarily placed a child in foster care had no automatic right to return of the child. If the agency refused consent for the return of the child to the parent, the parent's only remedy was to seek a writ of habeas corpus. N.Y.Civ.Prac.Law § 7001 et seq. (McKinney 1963); N.Y.Family Court Act § 651 (McKinney 1975). When the parent did not invoke this remedy, the child would remain in foster care. See Weiss & Chase, supra, n 10, at 326-327, 333-334.

[ Footnote 13]

The record indicates that at the end of 1973, of 48,812 children in foster care under the supervision of the New York State Board of Social Welfare and the New York State Department of Social Services, 35,287 (about 72%) were placed in foster family homes, and the rest in institutions or other facilities. App. 117a.

[ Footnote 14]

Such contractual provisions are apparently also characteristic of foster care arrangements in other States. See, e.g., Mnookin I 610.

[ Footnote 15]

See, e.g., the case of appellees Ralph and Christiane Goldberg, n 1, supra. Evidence in the record indicates that as many as one-third of all transfers within the foster care system are at the request of the foster parents. Affidavit of Carol J. Parry, App. 90a.

[ Footnote 16]

The resulting confusion not only produces anomalous legal relationships, but also affects the child's emotional status. The foster child's loyalties, emotional involvements, and responsibilities are often divided among three adult authority figures -- the natural parents, the foster parent, and the social worker representing the foster care agency. See, e.g., Kadushin 387-389; see also Mnookin I 624; Wald, State Intervention on Behalf of "Neglected" Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan.L.Rev. 623, 645 (1976) (hereafter Wald); E. Weinstein, The Self-Image of the Foster Child 15 (1960).

[ Footnote 17]

"Legal custody is concerned with the rights and duties of the person (usually the parent) having custody to provide for the child's daily needs -- to feed him, clothe him, provide shelter, put him to bed, send him to school, see that he washes his face and brushes his teeth."

Kadushin 354-355. Obviously, performance of these functions directly by a state agency is impractical.

[ Footnote 18]

"The agency sets limits and advances directives as to how the foster parents are to behave toward the child -- a situation not normally encountered by natural parents. The shared control and responsibility for the child is clearly set forth in the instruction pamphlets issued to foster parents."

Id. at 394. Agencies frequently prohibit corporal punishment; require that children over a certain age be given an allowance; forbid changes in the child's sleeping arrangements or vacations out of State without agency approval; require the foster parent to discuss the child's behavioral problems with the agency. Id. at 394-395. Furthermore, since the cost of supporting the child is borne by the agency, the responsibility, as well as the authority, of the foster parent is shared with the agency. Ibid.

[ Footnote 19]

Voluntary placement in foster care is entirely distinct from the "surrender" of both "the guardianship of the person and the custody" of a child under Soc.Serv.Law § 384, which frees the child for adoption. § 384(2).

"Adoption is the legal proceeding whereby a person takes another person into the legal relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person."

N.Y.Dom.Rel.Law § 110 (McKinney 1964). A child may also be freed for adoption by abandonment or consent. § 111 (McKinney Supp. 1976-1977); Soc.Serv.Law § 384-b.

[ Footnote 20]

"[A]lthough the agency usually obtains legal custody in foster family care, the child still legally 'belongs' to the parent and the parent retains guardianship. This means that, for some crucial aspects of the child's life, the agency has no authority to act. Only the parent can consent to surgery for the child, or consent to his marriage, or permit his enlistment in the armed forces, or represent him at law."

Kadushin 355. But see Soc.Serv.Law § 383-b.

[ Footnote 21]

The agreement transferring custody to the agency must inform the parent of these obligations. §§ 384-a(2)(c)(iii), (iv).

[ Footnote 22]

[ Footnote 23]

The record shows that, in 1973-1974, approximately 80% of the children removed from foster homes in New York State after living in the foster home for one year or more were transferred to another foster placement. Thirteen percent were returned to the biological parents, and 7% were adopted. Tr. of Oral Arg. 34; Brief for Appellees 20.

[ Footnote 24]

This regulation, set out in full in n 3, supra, was formerly numbered 18 N.Y.C.R.R. § 450.14, and is referred to by that number in the opinion of the District Court.

[ Footnote 25]

The State argues that, while § 450.10 provides minimum requirements for notice to the foster family of the agency's intention to remove the child and the reasons for that decision, the close contact between the agency and the foster parent insures that, in most circumstances, the foster parent is informed well in advance of any projected removal. In fact, 18 N.Y.C.R.R. § 606.16 (1976) requires the agency in some circumstances to begin for the discharge of the children from foster care, in cooperation with all parties involved, as early as six months in advance. Brief for Appellants in No. 76-183, pp. 21-23.

[ Footnote 26]

This statute is set out in full in n 3, supra.

[ Footnote 27]

A court, however, apparently may grant a stay in some circumstances. See, e.g., In re W., 77 Misc.2d 374, 377, 355 N.Y.S.2d 245, 249 (1974).

[ Footnote 28]

There is some dispute whether the procedures set out in 18 N.Y.C.R.R. § 450.10 and Soc.Serv.Law § 400 apply in the case of a foster child being removed from his foster home to be returned to his natural parents. Application of these procedures to children who have been placed voluntarily, for example, arguably conflicts with the requirement of § 384-a(2)(a) that children in that situation be returned to the natural parent as provided in the placement agreement or within 20 days of demand. Similarly, if the child has been ordered returned by a court, it is unclear what purpose could be served by an administrative conference or hearing on the correctness of the decision to remove the child from the foster home. Moreover, since the § 400 hearing takes place after removal of the child from the foster home, the hearing would have no purpose if the child has been returned to its parents, since the agency apparently has no authority to take the child back from its parents against their will without court intervention.

Nevertheless, nothing in either the statute or the regulations limits the availability of these procedures to transfers within the foster care system. Each refers to the decision to remove a child from the foster family home, and thus, on its face, each would seem to cover removal for the purpose of returning the child to its parents. Furthermore, it is undisputed on this record that the actual administrative practice in New York is to provide the conference and hearing in all cases where they are requested, regardless of the destination of the child. In the absence of authoritative state court interpretation to the contrary, we therefore assume that these procedures are available whenever a child is removed from a foster family home.

[ Footnote 29]

SSC Procedure No. 5 is set out in full in App. to Brief for Appellants in No. 76-5193, pp. 54a-65a, and in Jurisdictional Statement of New York City Appellants A8.

[ Footnote 30]

The agency is required to initiate such a review when a child has remained in foster care for 18 months, § 392(2)(a), and if the child remains in foster care, the court

"shall rehear the matter whenever it deems necessary or desirable, or upon petition by any party entitled to notice in proceedings under this section, but at least every twenty-four months."

§ 392(10).

[ Footnote 31]

If the agency already has guardianship as well as custody of the foster child, as in the case of a surrender or previous court order terminating the guardianship of the natural parent for neglect, see nn. 19 22 supra, the court may simply order that the child be placed for adoption, § 392(7)(d); if the agency does not have guardianship, as in the case of children placed in foster care temporarily either by court order or by voluntary placement, the court may direct the agency to initiate a proceeding to free the child for adoption under §§ 384-b, 392(7)(c).

[ Footnote 32]

Both the District Court, 418 F. Supp. at 284, and the appellees, Brief for Appellees 70-72, argue that § 392 does not permit the court to enter such an order, citing In re W., supra at 376, 355 N.Y.S.2d at 248. But in that very case, the court ordered that the child remain with the foster family pending exhaustion of the remedies provided by § 400, thus essentially converting that hearing into a pre-removal remedy. See n 27, supra. Moreover, other courts have granted such relief. In re S., 74 Misc.2d 935, 347 N.Y.S.2d 274 (1973). See also In re Denlow, 87 Misc.2d 410, 384 N.Y.S.2d 621 (1976); In re H., 80 Misc.2d 593, 363 N.Y.S.2d 73 (1974). This interpretation of the power of the court seems to be fully supported by the broad language of § 392(7).

[ Footnote 33]

For further comment on this point, see Jenkins, Child Welfare as a Class System, in Children and Decent People 3, 11-12 (A. Schorr ed.1974); Rein, Nutt, & Weiss, Foster Family Care: Myth and Reality, in Children and Decent People 24, 229 (A. Schorr ed.1974) (hereafter Rein, Nutt, & Weiss).

[ Footnote 34]

See, e.g., the case of Rafael Serrano, the foster child of appellees Ralph and Christiane Goldberg, n 1, supra.

[ Footnote 35]

Other factors alleged to bias agencies in favor of retention in foster care are the lack of sufficient staff to provide social work service needed by the natural parents to resolve their problems and prepare for return of the child; policies of many agencies to discourage involvement of the natural parents in the care of the child while in foster care; and systems of foster care funding that encourage agencies to keep the child in foster care. Wald 677-679. See also E. Sherman, R. Neuman, & A. Shyne, Children Adrift in Foster Care: A Study of Alternative Approaches 5 (1973).

[ Footnote 36]

For an example of this problem, see the case of intervenor Naomi Rodriguez, n 5, supra.

Recent legislative reforms in New York that decrease agencies' discretion to retain a child in foster care are apparently designed to meet these objections. For example, Soc.Serv.Law § 38a(2)(a) gives parents of children in voluntary foster placement greater rights to the return of their children. Since the statute permits placement agreements of varied terms, however, and since many children in foster care are not voluntarily placed, there may still be situations in which the agency has considerable discretion in deciding whether or not to return the child to the natural parent. The periodic court review provided by § 392 is also intended in part to meet these objections, but critics of foster care have argued that given the heavy caseloads, such review may often be perfunctory. Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39(3) Law & Contemp. Probs. 226, 274-275 (1975) (hereafter Mnookin II). Moreover, judges too may find it difficult, in utilizing vague standards like "the best interests of the child," to avoid decisions resting on subjective values.

[ Footnote 37]

The New York Legislature has recognized the merit of this criticism. Social Serv. Law § 38b(1)(b), adopted in 1976, states:

"The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens."

[ Footnote 38]

In New York City, 23.1% of foster children enter foster care when under one year of age, and 43% at age three or under. Child Welfare Information Services, supra, n 9, Table No. 5. Cf. E. Sherman, R. Neuman, & A. Shyne, supra at 24 (18% of foster care children in Rhode Island study were under one year of age when they entered foster care, and 43% were under the age of three).

[ Footnote 39]

One study of parental contacts in New York City found that 57.4% of all foster children had had no contact with their natural parents for the previous six months. Child Welfare Information Services, Parental Visiting Information, New York City Reports, Table No. 1 (Dec. 31, 1976).

[ Footnote 40]

The development of such ties points up an intrinsic ambiguity of foster care that is central to this case. The warmer and more homelike environment of foster care is intended to be its main advantage over institutional child care, yet, because in theory foster care is intended to be only temporary, foster parents are urged not be become too attached to the children in their care. Mnookin I 613. Indeed, the New York courts have upheld removal from a foster home for the very reason that the foster parents had become too emotionally involved with the child. In re Jewish Child Care Assn. (Sanders), 5 N.Y.2d 222, 156 N.E.2d 700 (1959). See also the case of the Lhotans, named appellees in this case, n 1, supra.

On the other hand, too warm a relation between foster parent and foster child is not the only possible problem in foster care. Qualified foster parents are hard to find, Kadushin 367-372, 415-417, and very little training is provided to equip them to handle the often complicated demands of their role, Rein, Nutt, & Weiss 445; it is thus sometimes possible that foster homes may provide inadequate care. Indeed, situations in which foster children were mistreated or abused have been reported. Wald 645. And the social work services that are supposed to be delivered to both the natural and foster families are often limited, due to the heavy caseloads of the agencies. Kadushin 413; Mnookin II 274. Given these problems, and given that the very fact of removal from even an inadequate natural family is often traumatic for the child,Wald 644-645, it is not surprising that one commentator has found "rather persuasive, if still incomplete, evidence that, throughout the United States, children in foster care are experiencing high rates of psychiatric disturbance." Eisenberg, The Sins of the Fathers: Urban Decay and Social Pathology, 32 Am.J. of Orthopsychiatry 5, 14 (1962).

[ Footnote 41]

It must be noted, however, that both appellee foster parents and intervening natural parents present incomplete pictures of the foster care system. Although seeking relief applicable to all removal situations, the foster parents focus on intra-foster care transfers, portraying a foster care system in which children neglected by their parents and condemned to a permanent limbo of foster care are arbitrarily shunted about by social workers whenever they become attached to a foster home. The natural parents, who focus on foster children being returned to their parents, portray a system under which poor and minority parents, deprived of their children under hard necessity and bureaucratic pressures, are obstructed in their efforts to maintain relationships with their children and ultimately to regain custody, by hostile agencies and meddling foster parents. As the experiences of the named parties to this suit, nn. 1 5 supra, and the critical studies of foster care cited supra at -838, demonstrate, there are elements of truth in both pictures. But neither represents the whole truth about the system.

[ Footnote 42]

Appellees have also apparently abandoned their claim that the challenged procedures violate the Equal Protection Clause of the Fourteenth Amendment.

[ Footnote 43]

The dissenting judge argued that the court's underlying premise was a holding

"over the objection of the representative of the children . . . that the foster children have a 'liberty' interest in their relationship with the foster parents."

418 F. Supp. at 288. If this was in fact the reasoning of the District Court, we do not see how it differs from a holding that the foster family relationship is entitled to privacy protection analogous to the natural family -- the issue the District Court purported not to reach.

[ Footnote 44]

Appellants argue, with the dissenting judge below, id. at 288, that in any event appellee foster parents have no standing to rely upon a supposed right of the foster children to avoid "grievous loss," because the foster children are independently represented by court-appointed counsel, who has consistently opposed the relief requested by appellees, and denied that the children have any such right.

This argument misunderstands the peculiar circumstances of this lawsuit. Ordinarily, it is true, a party would not have standing to assert the rights of another, himself a party in the litigation; the third party himself can decide how best to protect his interests. But children usually lack the capacity to make that sort of decision, and thus their interest is ordinarily represented in litigation by parents or guardians. In this case, however, the State, the natural parents, and the foster parents, all of whom share some portion of the responsibility for guardianship of the child, see supra at -828, and nn. 16-18, are parties, and all contend that the position they advocate is most in accord with the rights and interests of the children. In this situation, the District Court properly appointed independent counsel to represent the children, so that the court could have the benefit of an independent advocate for the welfare of the children, unprejudiced by the possibly conflicting interests and desires of the other parties. It does not follow, however, that that independent counsel, who is not a guardian ad litem of the children, is solely authorized to determine the children's best interest.

[ Footnote 45]

There can be, of course, no doubt of appellees' standing to assert this interest, which, to whatever extent it exists, belongs to the foster parents as much as to the foster children.

[ Footnote 46]

[ Footnote 47]

[ Footnote 48]

[ Footnote 49]

The scope of these rights extends beyond natural parents. The "parent" in Prince itself, for example, was the child's aunt and legal custodian. 321 U.S. at . And see Moore v. East Cleveland, ante at -506 (plurality opinion), -511 (BRENNAN, J., concurring).

[ Footnote 50]

[ Footnote 51]

Adoption, for example, is recognized as the legal equivalent of biological parenthood. See, e.g., N.Y.Dom.Rel.Law § 110, supra, n 19.

[ Footnote 52]

The briefs dispute at some length the validity of the "psychological parent" theory propounded in J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1973). That book, on which appellee foster parents relied to some extent in the District Court, is indeed controversial. See, e.g., Strauss & Strauss, Book Review, 74 Colum.L.Rev. 996 (1974); Kadushin, Beyond the Best Interests of the Child: An Essay Review, 48 Soc.Serv.Rev. 508, 512 (1974). But this case turns not on the disputed validity of any particular psychological theory, but on the legal consequences of the undisputed fact that the emotional ties between foster parent and foster child are in many cases quite close, and undoubtedly in some as close as those existing in biological families.

[ Footnote 53]

[ Footnote 54]

The New York Court of Appeals has as a matter of state law "[p]articularly rejected . . . the notion . . . that third-party custodians may acquire some sort of squatter's rights in another's child." Bennett v. Jeffreys, 40 N.Y.2d 543, 552 n. 2, 356 N.E.2d 277, 285 n. 2 (1976).

[ Footnote 55]

The judgment of the District Court contains a provision ( see Jurisdictional Statements, Joint App. 36a, 37a), not suggested in the opinion, that "hearings need not be held when the foster child is to be removed . . . at the request of the foster parent." At oral argument, counsel for the foster parents stated that this limitation was the result of

"a practical consideration. . . . [I]f a foster parent feels that the child cannot stay with the foster parent any longer, it doesn't make sense to try and impose that. . . . [I]t's hard to contemplate a situation in which it would be in the best interest of a child to stay with people that had asked that the child be taken."

Tr. of Oral Arg. 49. As many as one-third of transfers between foster homes may be at the request of the foster parents. N 15, supra.

[ Footnote 56]

"As of July 1, 1974, New York City has provided, at the foster parent's request, as a substitute for or supplement to the agency conference, a pre-removal 'independent review' conducted 'in accordance with the concepts of due process.' Its salient features, as set forth in an internal memorandum of August 5, 1974, are as follows: (1) the review is heard before a supervisory official who has had no previous involvement with the decision to remove the child; (2) both the foster parents and the agency may be represented by counsel and each may present witnesses and evidence; (3) all witnesses must be sworn, unless stipulated otherwise, and all testimony is subject to cross-examination; (4) counsel for the foster parents must be allowed to examine any portion of the agency's files used to support the proposal to remove the child; (5) either a tape recording or stenographic record of the hearing must be kept and made available to the parties at cost; and (6) a written decision, supported by reasons, must be rendered within five days, and must include a reminder to the foster parents that they may still request a post-removal hearing under N.Y.C.R.R. § 450.14."

418 F. Supp. at 285.

[ Footnote 57]

The District Court itself apparently relied on similar logic, in exempting in its judgment removals requested by foster parents from the mandatory hearing requirement. See n 55, supra. In terms of the emotional cohesion of the family, the difference between a foster parent who requests removal of the foster child, and one who merely consents to removal seems irrelevant.

[ Footnote 58]

[ Footnote 59]

Appointment of such representatives in each of the numerous cases in which the foster child is very young would, of course, represent a major administrative burden on the State. This burden would be balanced by little gain in accuracy of decisionmaking, since the appointed representative's inquiry into the best interests of the child would essentially duplicate that already conducted by the agency and that to be conducted at the hearing by the administrative decisionmaker.

Moreover, the State's interest in avoiding "fiscal and administrative burdens," Mathews v. Eldridge, , (1976), is not the only interest that must be weighed against requiring still more elaborate hearing procedures. As the District Court acknowledged, where delicate judgments concerning "the often ambiguous indices of a child's emotional attachments and psychological development" are involved, we must also consider the possibility that making the decisionmaking process increasingly adversary "might well impede the effort to elicit the sensitive and personal information required," 418 F. Supp. at 286, or make the struggle for custody, already often difficult for the child, see, e.g., Kadushin 404, even more traumatic. In such a situation, there is a value in less formalized hearing procedures. See also n 57, supra.

[ Footnote 60]

Since the class certified by the District Court embraces all foster parents who have had a foster child living with them for over one year, while § 392 is limited in application to children in foster care for 18 months, each class includes some children not included in the other. For example, a child who had been in foster care for 13 month, all of it with the same family, is a member of the certified class but not eligible for § 392 review. On the other hand, a child who has been in foster care for two years, but not with the same family, is eligible for § 392 review, but is not a member of the certified class.

[ Footnote 61]

In this Court, as in the District Court, the primary reliance of the defendants and intervenors has been on the adequacy of § 392 as a procedure for protecting the interests of the foster family, without as fully addressing the adequacy otherwise of the procedures provided by 18 N.Y.C.R.R. § 450.10 and Soc.Serv.Law § 400. Our consequent emphasis upon the adequacy of § 392 procedures as requiring reversal of the District Court is not to be understood to imply any view upon the adequacy of the alternative administrative remedies to protect those interests.

MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment.

The foster parent-foster child relationship involved in this litigation is, of course, wholly a creation of the State. New York law defines the circumstances under which a child may be placed in foster care, prescribes the obligations of the foster parents, and provides for the removal of the child from the foster home "in [the] discretion" of the agency with custody of the child. N.Y.Soc.Serv.Law § 383(2) (McKinney 1976). The agency compensates the foster parents, and reserves in its contracts the authority to decide as it sees fit whether and when a child shall be returned to his natural family or placed elsewhere. See Part I-A of the Court's opinion, ante at -828. Were it not for the system of foster care that the State maintains, the relationship for which constitutional protection is asserted would not even exist.

The New York Legislature and the New York courts have made it unmistakably clear that foster care is intended only as a temporary way station until a child can be returned to his natural parents or placed for adoption. Thus, Soc.Serv.Law § 38b(1)(b) (McKinney Supp. 1976-1977) states a legislative finding that

"many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive

Page 431 U. S. 857

citizens."

And, specifically repudiating the contention that New York law contemplates that a child will have a "secure, stable and continuous" relationship with a third-party custodian as the child's "psychological parent," the New York Court of Appeals has "[p]articularly rejected the notion, if that it be, that third-party custodians may acquire some sort of squatter's rights in another's child." Bennett v. Jeffreys, 40 N.Y.2d 543, 552 n. 2, 356 N.E.2d 277, 285 n. 2.

In these circumstances, I cannot understand why the Court thinks itself obliged to decide these cases on the assumption that either foster parents or foster children in New York have some sort of "liberty" interest in the continuation of their relationship. [ Footnote 2/1] Rather than tiptoeing around this central

Page 431 U. S. 858

issue, I would squarely hold that the interests asserted by the appellees are not of a kind that the Due Process Clause of the Fourteenth Amendment protects.

At the outset, I would reject, as does the Court, the apparent holding of the District Court that "the trauma of separation from a familiar environment" or the "harmful consequences of a precipitous and perhaps improvident decision to remove a child from his foster family," Organization of Foster Families v. Dumpson, 418 F. Supp. 277, 283, constitutes a "grievous loss" which therefore is protected by the Fourteenth Amendment. Not every loss, however "grievous," invokes the protection of the Due Process Clause. Its protections extend only to a deprivation by a State of "life, liberty, or property." And when a state law does operate to deprive a person of his liberty or property, the Due Process Clause is applicable even though the deprivation may not be "grievous." Goss v. Lopez, , . "[T]o determine whether due process requirements apply in the first place, we look not to the

Page 431 U. S. 859

Clearly, New York has deprived nobody of his life in these cases. It seems to me just as clear that the State has deprived nobody of his liberty or property. Putting to one side the District Court's erroneous "grievous loss" analysis, the appellees are left with very little ground on which to stand. Their argument seems to be that New York, by providing foster children with the opportunity to live in a foster home and to form a close relationship with foster parents, has created "liberty" or "property" that it may not withdraw without complying with the procedural safeguards that the Due Process Clause confers. But this Court's decision in Meachum v. Fano, supra, illustrates the fallacy of that argument.

At issue in Meachum was a claim by Massachusetts state prisoners that they could not constitutionally be transferred to another institution with less favorable living conditions without a prior hearing that would fully probe the reasons for their transfer. In accord with previous cases, see, e.g., Goss v. Lopez, supra; Wolff v. McDonnell, ; Board of Regents v. Roth, supra; Perry v. Sindermann, ; Goldberg v. Kelly, , the Court recognized that where state law confers a liberty or property interest, the Due Process Clause requires certain minimum procedures " to ensure that the state-created right is not arbitrarily abrogated.'" 427 U.S. at , quoting Wolff, supra at . But the predicate for invoking the Due Process Clause -- the existence of state-created liberty or property -- was missing in Meachum just as it is missing here. New York confers no right on foster families to remain intact, defeasible only upon proof of specific acts or circumstances. As was true of prison transfers in Meachum, transfers in and out of foster families "are made for a variety of reasons and often involve no more than informed predictions as to what would best serve . . . the safety and welfare of the [child]." 427 U.S. at .

Page 431 U. S. 860

Similarly, New York law provides no basis for a justifiable expectation on the part of foster families that their relationship will continue indefinitely. Cf. Perry v. Sindermann, supra at -603. The District Court in this litigation recognized as much, noting that the typical foster care contract gives the agency the right to recall the child "upon request," and commenting that the discretionary authority vested in the agency "is, on its face, incompatible with plaintiffs' claim of legal entitlement." 418 F. Supp. at 281. To be sure, the New York system has not operated perfectly. As the state legislature found, foster care has in many cases been unnecessarily protracted, no doubt sometimes resulting in the expectation on the part of some foster families that their relationship will continue indefinitely. But, as already noted, the New York Court of Appeals has unequivocally rejected the notion that, under New York law, prolonged third-party custody of children creates some sort of "squatter's rights." And, as this Court stated in Perry v. Sindermann, supra at , a mere subjective "expectancy" is not liberty or property protected by the Due Process Clause.

This is not to say that, under the law of New York, foster children are the pawns of the State, who may be whisked from family to family at the whim of state officials. The Court discusses in Unlike the prison transfer situation in Meachum v. Fano, it does not appear that child custody decisions can be made "for whatever reason or for no reason at all." 427 U.S. at . But the protection that foster children have is simply the requirement of state law that decisions about their placement be determined in the light of their best interests. See, e.g., Bennett v. Jeffreys, 40 N.Y.2d 543, 356 N.E.2d 277; In re Jewish Child Care Assn. (Sanders), 5 N.Y.2d 222, 156 N.E.2d 700; State ex rel. Wallace v. Lhotan,

Page 431 U. S. 861

51 App.Div.2d 252, 380 N.Y.S.2d 250, appeal dismissed and leave to appeal denied, 39 N.Y.2d 705. This requirement is not "liberty or property" protected by the Due Process Clause, and it confers no right or expectancy of any kind in the continuity of the relationship between foster parents and children. See, e.g., Bennett, supra at 552 n. 2, 356 N.E.2d at 285 n. 2: "Third-party custodians acquire rights' . . . only derivatively by virtue of the child's best interests being considered. . . ."

What remains of the appellees' argument is the theory that the relation of the foster parent to the foster child may generate emotional attachments similar to those found in natural families. The Court surmises that foster families who share these attachments might enjoy the same constitutional interest in "family privacy" as natural families. See, e.g., Moore v. East Cleveland, ante at -505 (plurality opinion of POWELL, J.); Roe v. Wade, , -153; Pierce v. Society of Sisters, ; Meyer v. Nebraska, .

On this score, the Court hypothesizes the case of

"a child [who] has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents. . . ."

Ante at . The foster family might then "hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family." Ibid.

But under New York's foster care laws, any case where the foster parents had assumed the emotional role of the child's natural parents would represent not a triumph of the system, to be constitutionally safeguarded from state intrusion, but a failure. The goal of foster care, at least in New York, is not to provide a permanent substitute for the natural or adoptive home, but to prepare the child for his return to his real parents or placement in a permanent adoptive home

Page 431 U. S. 862

by giving him temporary shelter in a family setting. See Part I-A of the Court's opinion, ante at -828. Thus, the New York Court of Appeals has recognized that the development of close emotional ties between foster parents and a child may hinder the child's ultimate adjustment in a permanent home, and provide a basis for the termination of the foster family relationship. In re Jewish Child Care Assn. (Sanders), supra. [ Footnote 2/2] See also State ex rel. Wallace v. Lhotan, supra. Perhaps it is to be expected that children who spend unduly long stays in what should have been temporary foster care will develop strong emotional ties with their foster parents. But this does not mean, and I cannot believe, that such breakdowns of the New York system must be protected or forever frozen in their existence by the Due Process Clause of the Fourteenth Amendment. [ Footnote 2/3]

Page 431 U. S. 863

For these reasons, I concur in the judgment of the Court.

[ Footnote 2/1]

First, it is by no means obvious that foster parents and foster children have the same interest in a continuation of their relationship. When the child leaves the foster family, it is because the agency with custody of him has determined that his interests will be better served by a new home, either with his natural parents, adoptive parents, or a different foster family. Any assessment of the child's alleged deprivation must take into account not only what he has lost, but what he has received in return. Foster parents, on the other hand, do not automatically receive a new child with whom they will presumably have a more profitable relationship.

Second, unlike the situation in Craig v. Boren, , -196, this is not a case where the failure to grant the parents their requested relief will inevitably tend to "[dilute] or adversely [affect]" the alleged constitutional rights of the children. Denying the parents a hearing simply has no effect whatever on the children's separate claim to a hearing, and does not impair their alleged constitutional rights. There is therefore no standing in the parents to assert the children's.claims. See Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 432 (1974), cited in Craig, supra at .

I would nevertheless consider both the parents' and the children's claims in these cases, but only because the suit was originally brought on behalf of both the parents and the children, all of whom were parties plaintiff. While it is true that their interests may conflict, there was no reason not to allow counsel for the parents to continue to represent the children to the extent that their interests may be compatible. The conflict was avoided by the District Court's appointment of independent counsel, who took a position opposite to that of the foster parents as to where the children's welfare lay. The appointment of independent counsel, however, should not have left the children without advocacy for the position, right or wrong, that they are entitled to due process hearings. That position should have been left to be asserted by the counsel who originally brought the suit for the children. My view, therefore, is that the parent and the children are properly before the Court, and entitled to assert their own separate claims, but that neither group has standing to assert the claims of the other.

[ Footnote 2/2]

"That the Sanders have given Laura a good home and have shown her great love does not stamp as an abuse of discretion the Trial Justice's determination to take her from them. Indeed, it is the extreme of love, affection and possessiveness manifested by the Sanders, together with the conduct which their emotional involvement impelled, that supplies the foundation of reasonableness and correctness for his determination. The vital fact is that Mr. and Mrs. Sanders are not, and presumably will never be, Laura's parents by adoption. Their disregard of that fact and their seizure of full parental status in the eyes of the child might well be, or so the Trial Justice was entitled to find, a source of detriment to the child in the circumstances presented."

5 N.Y.2d at 229, 156 N.E.2d at 703.

[ Footnote 2/3]

# data[].attributes.attachment_link.title
Smith v. Organization of Foster Families, 431 U.S. 816 (1977)

# data[].attributes.attachment_link.description
Smith v. Organization of Foster Families, 431 U.S. 816 (1977) Smith v. Organization of Foster Families for Equality & Reform No. 76-180 Argued March 21, 1977 Decided June 13, 1977431 U.S. 816ast|>* 431 U.S.

# data[].attributes.body
This state law guarantees that students that are homeless or in substitute care have a smooth transition when changing schools. Schools are responsible for granting credit, transferring records, and providing the student with extracurricular activities.

(Tex. Educ. Code § 25.007)

# data[].attributes.attachment_link.readable_text
EDUCATION CODE



TITLE 2. PUBLIC EDUCATION



SUBTITLE E. STUDENTS AND PARENTS



CHAPTER 25. ADMISSION, TRANSFER, AND ATTENDANCE



SUBCHAPTER A. ADMISSION AND ENROLLMENT



Sec. 25.001. ADMISSION. (a) A person who, on the first day of September of any school year, is at least five years of age and under 21 years of age, or is at least 21 years of age and under 26 years of age and is admitted by a school district to complete the requirements for a high school diploma is entitled to the benefits of the available school fund for that year. Any other person enrolled in a prekindergarten class under Section 29.153 is entitled to the benefits of the available school fund.


(b) The board of trustees of a school district or its designee shall admit into the public schools of the district free of tuition a person who is over five and younger than 21 years of age on the first day of September of the school year in which admission is sought, and may admit a person who is at least 21 years of age and under 26 years of age for the purpose of completing the requirements for a high school diploma, if:


(1) the person and either parent of the person reside in the school district;


(2) the person does not reside in the school district but a parent of the person resides in the school district and that parent is a joint managing conservator or the sole managing conservator or possessory conservator of the person;


(3) the person and the person's guardian or other person having lawful control of the person under a court order reside within the school district;


(4) the person has established a separate residence under Subsection (d);


(5) the person is homeless, regardless of the residence of the person, of either parent of the person, or of the person's guardian or other person having lawful control of the person;


(6) the person is a foreign exchange student placed with a host family that resides in the school district by a nationally recognized foreign exchange program, unless the school district has applied for and been granted a waiver by the commissioner under Subsection (e);


(7) the person resides at a residential facility located in the district;


(8) the person resides in the school district and is 18 years of age or older or the person's disabilities of minority have been removed;


(9) the person does not reside in the school district but the grandparent of the person:


(A) resides in the school district; and


(B) provides a substantial amount of after-school care for the person as determined by the board; or


(10) the person and either parent of the person reside in a residence homestead, as defined by Section 11.13(j), Tax Code, that is located on a parcel of property any part of which is located in the school district.


(b-1) A person who is 21 years of age or older and is admitted by a school district for the purpose stated in Subsection (b) is not eligible for placement in a disciplinary alternative education program or a juvenile justice alternative education program if the person engages in conduct that would require or authorize such placement for a student under the age of 21. If the student engages in conduct that would otherwise require such placement, the district shall revoke admission of the student into the public schools of the district.


(b-2) A person who is 21 years of age or older who is admitted by a school district to complete the requirements for a high school diploma and who has not attended school in the three preceding school years may not be placed with a student who is 18 years of age or younger in a classroom setting, a cafeteria, or another district-sanctioned school activity. Nothing in this subsection prevents a student described by this subsection from attending a school-sponsored event that is open to the public as a member of the public.


(c) The board of trustees of a school district or the board's designee may require evidence that a person is eligible to attend the public schools of the district at the time the board or its designee considers an application for admission of the person. The board of trustees or its designee shall establish minimum proof of residency acceptable to the district. The board of trustees or its designee may make reasonable inquiries to verify a person's eligibility for admission.


(c-1) A person whose parent or guardian is an active-duty member of the armed forces of the United States, including the state military forces or a reserve component of the armed forces, may establish residency for purposes of Subsection (b) by providing to the school district a copy of a military order requiring the parent's or guardian's transfer to a military installation in or adjacent to the district's attendance zone.


(c-2) A person who establishes residency as provided by Subsection (c-1) shall provide to the school district proof of residence in the district's attendance zone not later than the 10th day after the arrival date specified in the order described by that subsection. For purposes of this subsection, "residence" includes residence in a military temporary lodging facility.


(d) For a person under the age of 18 years to establish a residence for the purpose of attending the public schools separate and apart from the person's parent, guardian, or other person having lawful control of the person under a court order, it must be established that the person's presence in the school district is not for the primary purpose of participation in extracurricular activities. The board of trustees shall determine whether an applicant for admission is a resident of the school district for purposes of attending the public schools and may adopt reasonable guidelines for making a determination as necessary to protect the best interests of students. The board of trustees is not required to admit a person under this subsection if the person:


(1) has engaged in conduct or misbehavior within the preceding year that has resulted in:


(A) removal to a disciplinary alternative education program; or


(B) expulsion;


(2) has engaged in delinquent conduct or conduct in need of supervision and is on probation or other conditional release for that conduct; or


(3) has been convicted of a criminal offense and is on probation or other conditional release.


(e) A school district may request that the commissioner waive the requirement that the district admit a foreign exchange student who meets the conditions of Subsection (b)(6). The commissioner shall respond to a district's request not later than the 60th day after the date of receipt of the request. The commissioner shall grant the request and issue a waiver effective for a period not to exceed three years if the commissioner determines that admission of a foreign exchange student would:


(1) create a financial or staffing hardship for the district;


(2) diminish the district's ability to provide high quality educational services for the district's domestic students; or


(3) require domestic students to compete with foreign exchange students for educational resources.


(f) A child placed in foster care by an agency of the state or by a political subdivision shall be permitted to attend the public schools in the district in which the foster parents reside free of any charge to the foster parents or the agency. A durational residence requirement may not be used to prohibit that child from fully participating in any activity sponsored by the school district.


(g) A student who was enrolled in a primary or secondary public school before the student entered the conservatorship of the Department of Family and Protective Services and who is placed at a residence outside the attendance area for the school or outside the school district is entitled to continue to attend the school in which the student was enrolled immediately before entering conservatorship until the student successfully completes the highest grade level offered by the school at the time of placement without payment of tuition. The student is entitled to continue to attend the school regardless of whether the student remains in the conservatorship of the department for the duration of the student's enrollment in the school.


(g-1) If a student who is in the conservatorship of the department is enrolled in a primary or secondary public school, other than the school in which the student was enrolled at the time the student was placed in the conservatorship of the department, the student is entitled to continue to attend that school without payment of tuition until the student successfully completes the highest grade level offered by the school at the time of enrollment in the school, even if the child's placement is changed to a residence outside the attendance area for that school or outside the school district. The student is entitled to continue to attend the school regardless of whether the student remains in the conservatorship of the department for the duration of the student's enrollment in the school.


(h) In addition to the penalty provided by Section 37.10, Penal Code, a person who knowingly falsifies information on a form required for enrollment of a student in a school district is liable to the district if the student is not eligible for enrollment in the district but is enrolled on the basis of the false information. The person is liable, for the period during which the ineligible student is enrolled, for the greater of:


(1) the maximum tuition fee the district may charge under Section 25.038; or


(2) the amount the district has budgeted for each student as maintenance and operating expenses.


(i) A school district may include on an enrollment form notice of the penalties provided by Section 37.10, Penal Code, and of the liability provided by Subsection (h) for falsifying information on the form.


(j) For the purposes of this subchapter, the board of trustees of a school district by policy may allow a person showing evidence of legal responsibility for a child other than an order of a court to substitute for a guardian or other person having lawful control of the child under an order of a court.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1019, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 396, Sec. 2.08, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1055, Sec. 2, eff. June 20, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 164 (H.B. 25), Sec. 2, eff. May 27, 2005.


Acts 2005, 79th Leg., Ch. 920 (H.B. 283), Sec. 1, eff. June 18, 2005.


Acts 2007, 80th Leg., R.S., Ch. 850 (H.B. 1137), Sec. 1, eff. June 15, 2007.


Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 4.002, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 688 (H.B. 2619), Sec. 9, eff. September 1, 2013.


Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 3, eff. May 28, 2015.


Acts 2015, 84th Leg., R.S., Ch. 944 (S.B. 206), Sec. 1, eff. September 1, 2015.


Acts 2019, 86th Leg., R.S., Ch. 262 (H.B. 1597), Sec. 1, eff. May 28, 2019.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 1.03, eff. June 10, 2019.


Acts 2019, 86th Leg., R.S., Ch. 823 (H.B. 2526), Sec. 1, eff. June 10, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.016, eff. September 1, 2019.


Sec. 25.0011. CERTAIN INCARCERATED CHILDREN. (a) For purposes of Section 25.001, a person is not considered to reside in a school district if:


(1) the person is incarcerated in a private juvenile detention facility in the district as a result of the order of a court in another state; and


(2) the person resided in another state or country immediately before incarceration in the facility.


(b) A school district may provide educational services to a person described by Subsection (a) if the district is fully compensated for the cost of the services through payment of tuition for the person by the operator of the juvenile detention facility or other person having lawful control of the person in an amount equal to the actual cost of educating the person.


(c) For purposes of this section, "private juvenile detention facility" means a juvenile detention facility that is not operated by a governmental entity.


Added by Acts 1999, 76th Leg., ch. 1477, Sec. 30, eff. Sept. 1, 1999.


Sec. 25.002. REQUIREMENTS FOR ENROLLMENT. (a) If a parent or other person with legal control of a child under a court order enrolls the child in a public school, the parent or other person or the school district in which the child most recently attended school shall furnish to the school district:


(1) the child's birth certificate or another document suitable as proof of the child's identity;


(2) a copy of the child's records from the school the child most recently attended if the child has been previously enrolled in a school in this state or another state; and


(3) a record showing that the child has the immunizations as required under Section 38.001, in the case of a child required under that section to be immunized, proof as required by that section showing that the child is not required to be immunized, or proof that the child is entitled to provisional admission under that section and under rules adopted under that section.


(a-1) Information a school district furnishes under Subsections (a)(1) and (2) must be furnished by the district not later than the 10th working day after the date a request for the information is received by the district. Information a parent or other person with legal control of a child under a court order furnishes under Subsections (a)(1) and (2) must be furnished by the parent or other person not later than the 30th day after the date a child is enrolled in a public school. If a parent or other person with legal control of a child under a court order requests that a district transfer a child's student records, the district to which the request is made shall notify the parent or other person as soon as practicable that the parent or other person may request and receive an unofficial copy of the records for delivery in person to a school in another district.


(b) If a child is enrolled under a name other than the child's name as it appears in the identifying document or records, the school district shall notify the missing children and missing persons information clearinghouse of the child's name as shown on the identifying document or records and the name under which the child is enrolled. The information in the notice is confidential and may be released only to a law enforcement agency.


(c) If the information required by Subsection (a) is not furnished to the district within the period provided by that subsection, the district shall notify the police department of the municipality or sheriff's department of the county in which the district is located and request a determination of whether the child has been reported as missing.


(d) When accepting a child for enrollment, the school district shall inform the parent or other person enrolling the child that presenting a false document or false records under this section is an offense under Section 37.10, Penal Code, and that enrollment of the child under false documents subjects the person to liability for tuition or costs under Section 25.001(h).


(e) A person commits an offense if the person enrolls a child in a public school and fails to furnish an identifying document or record relating to the child on the request of a law enforcement agency conducting an investigation in response to a notification under Subsection (c). An offense under this subsection is a Class B misdemeanor.


(f) Except as otherwise provided by this subsection, for a child to be enrolled in a public school, the child must be enrolled by the child's parent or by the child's guardian or other person with legal control of the child under a court order. A school district shall record the name, address, and date of birth of the person enrolling a child.


(g) A school district shall accept a child for enrollment in a public school without the documentation required by Subsection (a) if the Department of Protective and Regulatory Services has taken possession of the child under Chapter 262, Family Code. The Department of Protective and Regulatory Services shall ensure that the documentation required by Subsection (a) is furnished to the school district not later than the 30th day after the date the child is enrolled in the school.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 575, Sec. 34, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1514, Sec. 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 234, Sec. 2, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 164 (H.B. 25), Sec. 3, eff. May 27, 2005.


Sec. 25.0021. USE OF LEGAL SURNAME. In each public school a student must be identified by the student's legal surname as that name appears:


(1) on the student's birth certificate or other document suitable as proof of the student's identity; or


(2) in a court order changing the student's name.


Added by Acts 2001, 77th Leg., ch. 1300, Sec. 1, eff. Sept. 1, 2001.


Sec. 25.0022. FOOD ALLERGY INFORMATION REQUESTED UPON ENROLLMENT. (a) In this section, "severe food allergy" means a dangerous or life-threatening reaction of the human body to a food-borne allergen introduced by inhalation, ingestion, or skin contact that requires immediate medical attention.


(b) On enrollment of a child in a public school, a school district shall request, by providing a form or otherwise, that a parent or other person with legal control of the child under a court order:


(1) disclose whether the child has a food allergy or a severe food allergy that, in the judgment of the parent or other person with legal control, should be disclosed to the district to enable the district to take any necessary precautions regarding the child's safety; and


(2) specify the food to which the child is allergic and the nature of the allergic reaction.


(c) A school district shall maintain the confidentiality of information provided under this section, and may disclose the information to teachers, school counselors, school nurses, and other appropriate school personnel only to the extent consistent with district policy under Section 38.009 and permissible under the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).


(d) Except as provided by Subsections (e) and (f), information regarding a child's food allergy, regardless of how it is received by the school or school district, shall be retained in the child's student records but may not be placed in the health record maintained for the child by the school district.


(e) If the school receives documentation of a food allergy from a physician, that documentation shall be placed in the health record maintained for the child by the school district.


(f) A registered nurse may enter appropriate notes about a child's possible food allergy in the health record maintained for the child by the school district, including a notation that the child's student records indicate that a parent has notified the school district of the child's possible food allergy.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1276 (H.B. 742), Sec. 1, eff. June 17, 2011.


Sec. 25.003. TUITION FOR CERTAIN CHILDREN FROM OTHER STATES. (a) Notwithstanding any other provision of this code, a school district shall charge tuition for a child who resides at a residential facility and whose maintenance expenses are paid in whole or in part by another state or the United States.


(b) A tuition charge under this section must be submitted to the commissioner for approval.


(c) The attendance of the child is not counted for purposes of allocating state funds to the district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 396, Sec. 2.09, eff. Sept. 1, 1999.


Sec. 25.0031. TUITION FOR STUDENTS HOLDING CERTAIN STUDENT VISAS. (a) Notwithstanding any other provision of this code, if a student is required, as a condition of obtaining or holding the appropriate United States student visa, to pay tuition to the school district or open-enrollment charter school that the student attends to cover the cost of the student's education provided by the district or charter school, the district or charter school shall accept tuition for the student in an amount equal to the full unsubsidized per capita cost of providing the student's education for the period of the student's attendance at school in the district or at the charter school.


(b) The commissioner shall, for purposes of Subsection (a), develop guidelines for determining the amount of the full unsubsidized per capita cost of providing a student's education. A school district or open-enrollment charter school may not accept tuition in an amount greater than the amount computed under the commissioner's guidelines unless the commissioner approves a greater amount as a more accurate reflection of the cost of education to be provided by the district or charter school.


(c) Notwithstanding any other provision of this code, the attendance of a student for whom a school district or open-enrollment charter school accepts tuition under this section is not counted for purposes of allocating state funds to the district or charter school.


Added by Acts 2013, 83rd Leg., R.S., Ch. 523 (S.B. 453), Sec. 1, eff. June 14, 2013.


Sec. 25.004. TUITION FOR CERTAIN MILITARY DEPENDENTS PROHIBITED. A school district may not charge tuition for the attendance of a student who is domiciled in another state and resides in military housing that is located in the district but is exempt from taxation by the district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 526, Sec. 1, eff. Sept. 11, 2001.


Sec. 25.005. RECIPROCITY AGREEMENTS REGARDING MILITARY PERSONNEL AND DEPENDENTS. (a) To facilitate the transfer of military personnel and their dependents to and from the public schools of this state, the agency shall pursue reciprocity agreements governing the terms of those transfers with other states that are not parties to the Interstate Compact on Educational Opportunity for Military Children adopted under Chapter 162.


(b) A reciprocity agreement must:


(1) address procedures for:


(A) transferring student records;


(B) awarding credit for completed course work; and


(C) permitting a student to satisfy the requirements of Section 39.025 through successful performance on comparable end-of-course or other exit-level assessment instruments administered in another state; and


(2) include appropriate criteria developed by the agency.


Added by Acts 2001, 77th Leg., ch. 1073, Sec. 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 149, Sec. 24, eff. May 27, 2003; Acts 2003, 78th Leg., ch. 445, Sec. 1, eff. June 20, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1312 (S.B. 1031), Sec. 3, eff. September 1, 2007.


Acts 2009, 81st Leg., R.S., Ch. 8 (S.B. 90), Sec. 2, eff. May 5, 2009.


Sec. 25.006. TRANSITION ASSISTANCE FOR MILITARY DEPENDENTS. (a) The legislature finds that:


(1) school-age dependents of military personnel are faced with numerous transitions during their formative years; and


(2) military dependents who move from one school to another during the high school years are faced with special challenges to learning and future achievement.


(b) In recognition of the challenges faced by military dependents and the importance of military families to our community and economy, the agency shall assist the transition of military students from one school to another by:


(1) improving the timely transfer of student records;


(2) developing systems to ease student transition during the first two weeks of enrollment at a new school;


(3) promoting practices that foster student access to extracurricular programs;


(4) establishing procedures to lessen the adverse impact of student moves to a new school after the end of the student's junior year of high school;


(5) encouraging or maintaining partnerships between military bases and affected school districts;


(6) encouraging school districts to provide services for military students in transition when applying for admission to postsecondary study and when seeking sources of funding for postsecondary study; and


(7) providing other assistance as identified by the agency.


(c) The agency shall collect data each year from school districts and open-enrollment charter schools through the Public Education Information Management System (PEIMS) relating to the enrollment of military-connected students. The data relating to the enrollment of military-connected students under this section:


(1) must include the number of active duty military-connected students and the number of National Guard or reserve military-connected students enrolled in the school district or open-enrollment charter school on a date at the beginning of the school year specified by the agency and a date at the end of the school year specified by the agency; and


(2) may not be used for purposes of determining a campus or district performance rating under Section 39.054.


(d) In this section, "military-connected student" means a student enrolled in a school district or open-enrollment charter school who:


(1) is a dependent of a current or former member of:


(A) the United States military;


(B) the Texas National Guard; or


(C) a reserve force of the United States military; or


(2) was a dependent of a member of a military or reserve force described by Subdivision (1) who was killed in the line of duty.


Added by Acts 2005, 79th Leg., Ch. 164 (H.B. 25), Sec. 1, eff. May 27, 2005.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 173 (H.B. 525), Sec. 1, eff. May 25, 2013.


Acts 2019, 86th Leg., R.S., Ch. 269 (S.B. 1557), Sec. 1, eff. May 28, 2019.


Sec. 25.007. TRANSITION ASSISTANCE FOR STUDENTS WHO ARE HOMELESS OR IN SUBSTITUTE CARE. (a) The legislature finds that:


(1) students who are homeless or in substitute care are faced with numerous transitions during their formative years; and


(2) students who are homeless or in substitute care who move from one school to another are faced with special challenges to learning and future achievement.


(a-1) Repealed by Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 3.01(2), eff. June 10, 2019.


(b) In recognition of the challenges faced by students who are homeless or in substitute care, the agency shall assist the transition of students who are homeless or in substitute care from one school to another by:


(1) ensuring that school records for a student who is homeless or in substitute care are transferred to the student's new school not later than the 10th working day after the date the student begins enrollment at the school;


(2) developing systems to ease transition of a student who is homeless or in substitute care during the first two weeks of enrollment at a new school;


(3) developing procedures for awarding credit, including partial credit if appropriate, for course work, including electives, completed by a student who is homeless or in substitute care while enrolled at another school;


(4) developing procedures to ensure that a new school relies on decisions made by the previous school regarding placement in courses or educational programs of a student who is homeless or in substitute care and places the student in comparable courses or educational programs at the new school, if those courses or programs are available;


(5) promoting practices that facilitate access by a student who is homeless or in substitute care to extracurricular programs, summer programs, credit transfer services, electronic courses provided under Chapter 30A, and after-school tutoring programs at nominal or no cost;


(6) establishing procedures to lessen the adverse impact of the movement of a student who is homeless or in substitute care to a new school;


(7) entering into a memorandum of understanding with the Department of Family and Protective Services regarding the exchange of information as appropriate to facilitate the transition of students in substitute care from one school to another;


(8) encouraging school districts and open-enrollment charter schools to provide services for a student who is homeless or in substitute care in transition when applying for admission to postsecondary study and when seeking sources of funding for postsecondary study;


(9) requiring school districts, campuses, and open-enrollment charter schools to accept a referral for special education services made for a student who is homeless or in substitute care by a school previously attended by the student, and to provide comparable services to the student during the referral process or until the new school develops an individualized education program for the student;


(10) requiring school districts, campuses, and open-enrollment charter schools to provide notice to the child's educational decision-maker and caseworker regarding events that may significantly impact the education of a child, including:


(A) requests or referrals for an evaluation under Section 504, Rehabilitation Act of 1973 (29 U.S.C. Section 794), or special education under Section 29.003;


(B) admission, review, and dismissal committee meetings;


(C) manifestation determination reviews required by Section 37.004(b);


(D) any disciplinary actions under Chapter 37 for which parental notice is required;


(E) citations issued for Class C misdemeanor offenses on school property or at school-sponsored activities;


(F) reports of restraint and seclusion required by Section 37.0021;


(G) use of corporal punishment as provided by Section 37.0011; and


(H) appointment of a surrogate parent for the child under Section 29.0151;


(11) developing procedures for allowing a student who is homeless or in substitute care who was previously enrolled in a course required for graduation the opportunity, to the extent practicable, to complete the course, at no cost to the student, before the beginning of the next school year;


(12) ensuring that a student who is homeless or in substitute care who is not likely to receive a high school diploma before the fifth school year following the student's enrollment in grade nine, as determined by the district, has the student's course credit accrual and personal graduation plan reviewed;


(13) ensuring that a student in substitute care who is in grade 11 or 12 be provided information regarding tuition and fee exemptions under Section 54.366 for dual-credit or other courses provided by a public institution of higher education for which a high school student may earn joint high school and college credit;


(14) designating at least one agency employee to act as a liaison officer regarding educational issues related to students in the conservatorship of the Department of Family and Protective Services; and


(15) providing other assistance as identified by the agency.


(c) The commissioner may establish rules to implement this section and to facilitate the transition between schools of children who are homeless or in substitute care.


Added by Acts 2009, 81st Leg., R.S., Ch. 850 (S.B. 2248), Sec. 1, eff. June 19, 2009.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 688 (H.B. 2619), Sec. 10, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1354 (S.B. 1404), Sec. 1, eff. June 14, 2013.


Acts 2015, 84th Leg., R.S., Ch. 746 (H.B. 1804), Sec. 1, eff. September 1, 2015.


Acts 2015, 84th Leg., R.S., Ch. 822 (H.B. 3748), Sec. 1, eff. June 17, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1206 (S.B. 1494), Sec. 1, eff. June 19, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1206 (S.B. 1494), Sec. 2, eff. June 19, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1206 (S.B. 1494), Sec. 3, eff. June 19, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1236 (S.B. 1296), Sec. 5.002, eff. September 1, 2015.


Reenacted and amended by Acts 2017, 85th Leg., R.S., Ch. 419 (S.B. 1220), Sec. 1, eff. June 1, 2017.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 419 (S.B. 1220), Sec. 2, eff. June 1, 2017.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 3.01(2), eff. June 10, 2019.


Acts 2019, 86th Leg., R.S., Ch. 781 (H.B. 1709), Sec. 1, eff. June 10, 2019.


Sec. 25.008. ENROLLMENT IN SUMMER SCHOOL COURSE BY PERSON NOT ENROLLED IN DISTRICT. (a) Except as provided by Subsection (b), a school district shall permit a person who is eligible under Section 25.001 to attend school in the district but who is not enrolled in school in the district to enroll in a district summer school course on the same basis as a district student, including:


(1) satisfaction of any course eligibility requirement; and


(2) payment of any fee authorized under Section 11.158 that is charged in connection with the course.


(b) Subsection (a) does not apply to enrollment in a program under Section 29.088 or 29.090 or in a similar intensive program.


Added by Acts 2013, 83rd Leg., R.S., Ch. 344 (H.B. 2137), Sec. 1, eff. June 14, 2013.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.017, eff. September 1, 2019.


SUBCHAPTER B. ASSIGNMENTS AND TRANSFERS



Sec. 25.031. ASSIGNMENTS AND TRANSFERS IN DISCRETION OF GOVERNING BOARD. In conformity with this subchapter, the board of trustees of a school district or the board of county school trustees or a school employee designated by the board may assign and transfer any student from one school facility or classroom to another within its jurisdiction.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.032. BASIS FOR ASSIGNMENT OR TRANSFER. The board of trustees of a school district, the board of county school trustees, or the person acting for the board must make the decision concerning the assignment or transfer of a student on an individual basis and may not consider as a factor in its decision any matter relating to the national origin of the student or the student's ancestral language.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.033. ASSIGNMENT OR TRANSFER ON PETITION OF PARENT. The parent or person standing in parental relation to any student may by petition in writing either:


(1) request the assignment or transfer of the student to a designated school or to a school to be designated by the board; or


(2) file objections to the assignment of the student to the school to which the student has been assigned.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.034. HEARING; ACTION ON PETITION; APPEAL. (a) On receiving a petition under Section 25.033, the board of trustees of the school district or the board of county school trustees shall:


(1) if a hearing is not requested, act on the petition not later than the 30th day after the date the petition is submitted and notify the petitioner of the board's conclusion; or


(2) if a hearing is requested, designate a time and place for holding a hearing not later than the 30th day after the date the petition is submitted.


(b) If a hearing is requested, it shall be conducted by the board in compliance with this section.


(c) The petitioner may present evidence relevant to the individual student.


(d) The board may conduct investigations as to the objection or request, examine any student involved, and employ agents, professional or otherwise, for the purpose of examinations and investigations.


(e) The board must grant the request made in the petition unless the board determines that there is a reasonable basis for denying the request. The decision of the board, either with or without hearing, is final unless the student, or the parent, guardian, or custodian of the student as next friend, files exception to the decision of the board as constituting a denial of any right of the student guaranteed under the United States Constitution.


(f) If an exception is filed under Subsection (e), the board may reconsider its decision. If the board has not ruled on the exception before the 16th day after the date of the filing, the exception is considered overruled. If the exception is overruled, an appeal of the board's decision may be filed in the district court of the county in which the board is located. The petition must:


(1) be filed not later than the 30th day after the date of the board's final decision; and


(2) state the facts relevant to the student that relate to the alleged denial of the student's rights under the United States Constitution.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.0341. TRANSFER OF STUDENTS INVOLVED IN SEXUAL ASSAULT. (a) This section applies only to:


(1) a student:


(A) who has been convicted of continuous sexual abuse of young child or children under Section 21.02, Penal Code, or convicted of or placed on deferred adjudication for the offense of sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code, committed against another student who, at the time the offense occurred, was assigned to the same campus as the student convicted or placed on deferred adjudication;


(B) who has been adjudicated under Section 54.03, Family Code, as having engaged in conduct described by Paragraph (A);


(C) whose prosecution under Section 53.03, Family Code, for engaging in conduct described by Paragraph (A) has been deferred; or


(D) who has been placed on probation under Section 54.04(d)(1), Family Code, for engaging in conduct described by Paragraph (A); and


(2) a student who is the victim of conduct described by Subdivision (1)(A).


(b) On the request of a parent or other person with authority to act on behalf of a student who is a victim to whom Subsection (a)(2) applies:


(1) the board of trustees of the school district shall transfer the student to:


(A) a district campus other than:


(i) the campus to which the student was assigned at the time the conduct occurred; or


(ii) the campus to which the student who engaged in the conduct is assigned, if the student who engaged in the conduct has been assigned to a different campus since the conduct occurred; or


(B) a neighboring school district, if there is only one campus in the district serving the grade level in which the student is enrolled; or


(2) if the student does not wish to transfer to another campus or district, the board of trustees shall transfer the student who engaged in the conduct to:


(A) a district campus other than the campus to which the student who is the victim of the conduct is assigned; or


(B) the district's disciplinary alternative education program or juvenile justice alternative education program, if there is only one campus in the district serving the grade level in which the student who engaged in the conduct is enrolled.


(c) A transfer under Subsection (b)(1) must be to a campus or school district, as applicable, agreeable to the parent or other person with authority to act on the student's behalf.


(d) To the extent permitted under federal law, a school district shall notify the parent or other person with authority to act on behalf of a student who is a victim to whom Subsection (a)(2) applies of the campus or program to which the student who engaged in conduct described by Subsection (a)(1)(A) is assigned.


(e) This section applies regardless of whether the conduct occurred on or off of school property.


(f) Section 25.034 does not apply to a transfer under this section.


(g) A school district is not required to provide transportation to a student who transfers to another campus or school district under this section.


Added by Acts 2005, 79th Leg., Ch. 997 (H.B. 308), Sec. 1, eff. June 18, 2005.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.25, eff. September 1, 2007.


Sec. 25.0342. TRANSFER OF STUDENTS WHO ARE VICTIMS OF OR HAVE ENGAGED IN BULLYING.


(a) In this section, "bullying" has the meaning assigned by Section 37.0832.


(b) On the request of a parent or other person with authority to act on behalf of a student who is a victim of bullying, the board of trustees of a school district or the board's designee shall transfer the victim to:


(1) another classroom at the campus to which the victim was assigned at the time the bullying occurred; or


(2) a campus in the school district other than the campus to which the victim was assigned at the time the bullying occurred.


(b-1) The board of trustees of a school district may transfer the student who engaged in bullying to:


(1) another classroom at the campus to which the victim was assigned at the time the bullying occurred; or


(2) a campus in the district other than the campus to which the victim was assigned at the time the bullying occurred, in consultation with a parent or other person with authority to act on behalf of the student who engaged in bullying.


(b-2) Section 37.004 applies to a transfer under Subsection (b-1) of a student with a disability who receives special education services.


(c) The board of trustees or the board's designee shall verify that a student has been a victim of bullying before transferring the student under this section.


(d) The board of trustees or the board's designee may consider past student behavior when identifying a bully.


(e) The determination by the board of trustees or the board's designee is final and may not be appealed.


(f) A school district is not required to provide transportation to a student who transfers to another campus under Subsection (b)(2).


(g) Section 25.034 does not apply to a transfer under this section.


Added by Acts 2005, 79th Leg., Ch. 920 (H.B. 283), Sec. 2, eff. June 18, 2005.


Renumbered from Education Code, Section 25.0341 by Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 17.001(12), eff. September 1, 2007.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 776 (H.B. 1942), Sec. 2, eff. June 17, 2011.


Acts 2011, 82nd Leg., R.S., Ch. 776 (H.B. 1942), Sec. 3, eff. June 17, 2011.


Sec. 25.0343. TRANSFER OF STUDENTS RESIDING IN HOUSEHOLD OF STUDENT RECEIVING SPECIAL EDUCATION SERVICES. (a) If, for the purpose of receiving special education services under Subchapter A, Chapter 29, a school district assigns a student to a district campus other than the campus the student would attend based on the student's residence, the district shall permit the student's parent, guardian, or other person standing in parental relation to the student to obtain a transfer to the assigned campus for any other student residing in the household of the student receiving special education services, provided that:


(1) the other student is entitled under Section 25.001 to attend school in the district; and


(2) the appropriate grade level for the other student is offered at the campus.


(b) A school district is not required to provide transportation to a student who transfers to another campus under this section. This subsection does not affect any transportation services provided by the district in accordance with other law for the student receiving special education services.


(c) Section 25.034 does not apply to a transfer under this section.


(d) This section does not apply if the student receiving special education services resides in a residential facility.


Added by Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 12.01, eff. May 31, 2006.


Sec. 25.035. TRANSFERS BETWEEN DISTRICTS OR COUNTIES. The boards of trustees of two or more adjoining school districts or the boards of county school trustees of two or more adjoining counties may, by agreement and in accordance with Sections 25.032, 25.033, and 25.034, arrange for the transfer and assignment of any student from the jurisdiction of one board to that of another. In the case of the transfer and assignment of a student under this section, the participating governing boards shall also agree to the transfer of school funds or other payments proportionate to the transfer of attendance.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.036. TRANSFER OF STUDENT. (a) Any child, other than a high school graduate, who is younger than 21 years of age and eligible for enrollment on September 1 of any school year may transfer annually from the child's school district of residence to another district in this state if both the receiving district and the applicant parent or guardian or person having lawful control of the child jointly approve and timely agree in writing to the transfer.


(b) A transfer agreement under this section shall be filed and preserved as a receiving district record for audit purposes of the agency.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.037. TRANSFER OF STATE FUNDS. On the timely filing with the agency of notice of a child's transfer and certification by the agency of the transfer, the state available school fund apportionment transfers with the child. For purposes of computing state allotments to school districts under the Foundation School Program, the attendance of the child before the date of transfer is counted by the transfer sending district and the attendance of the child after the date of transfer is counted by the transfer receiving district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.038. TUITION FEE FOR TRANSFER STUDENTS. The receiving school district may charge a tuition fee to the extent that the district's actual expenditure per student in average daily attendance, as determined by its board of trustees, exceeds the sum the district benefits from state aid sources as provided by Section 25.037. However, unless a tuition fee is prescribed and set out in a transfer agreement before its execution by the parties, an increase in tuition charge may not be made for the year of that transfer that exceeds the tuition charge, if any, of the preceding school year.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.039. CONTRACTS AND TUITION FOR EDUCATION OUTSIDE DISTRICT. (a) A school district that does not offer each grade level from kindergarten through grade 12 may provide by contract for students residing in the district who are at grade levels not offered by the district to be educated at those grade levels in one or more other districts. In each contract, the districts also shall agree to the transfer of school funds or other payments proportionate to the transfer of attendance.


(b) The school district in which the students reside shall pay tuition to any district with which it has a contract under this section for each of its students attending school in that district at a grade level for which the district has contracted. The amount of the tuition paid may not exceed the greater of the amount provided for by Section 25.038 or an amount specified by commissioner rule.


(c) A school district is not required to pay tuition to any district with which it has not contracted for the attendance by any of its students at a grade level for which it has contracted under this section with another district.


(d) A contract under this section may not be for a period exceeding five years.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 396, Sec. 1.32, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1069, Sec. 1, eff. Sept. 1, 2003.


Sec. 25.040. TRANSFER TO DISTRICT OF BORDERING STATE. Any child entitled to attend the public school of any school district situated on the border of Louisiana, Arkansas, Oklahoma, or New Mexico who finds it more convenient to attend the public school in a district in the contiguous state may have the apportionment of the state and county available school funds paid to the school district of the contiguous state and may have additional tuition, if necessary, paid by the district of the child's residence on terms agreed on by the trustees of the receiving district and the trustees of the residence district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.041. TRANSFER OF CHILDREN OR WARDS OF EMPLOYEES OF STATE SUPPORTED LIVING CENTERS. A school-age child or ward of an employee of a state supported living center for persons with intellectual disabilities constituted as a school district who resides in the boundaries of center property but who is not a student at the center is entitled to attend school in a district adjacent to the center free of any charge to the child's or ward's parent or guardian provided the parent or guardian is required by the superintendent of the center to live on the grounds of the center for the convenience of this state. A tuition charge required by the admitting district shall be paid by the district constituting the state supported living center out of funds allotted to it by the agency.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 1279 (H.B. 965), Sec. 1, eff. September 1, 2019.


Sec. 25.042. TRANSFER OF CHILDREN OF EMPLOYEES OF TEXAS JUVENILE JUSTICE DEPARTMENT FACILITIES. A school-age child of an employee of a facility of the Texas Juvenile Justice Department is entitled to attend school in a school district adjacent to the district in which the student resides free of any charge to the student's parents or guardian. Any tuition charge required by the admitting district shall be paid by the district from which the student transfers out of any funds appropriated to the facility.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 734 (H.B. 1549), Sec. 21, eff. September 1, 2015.


Sec. 25.043. CLASSROOM PLACEMENT OF MULTIPLE BIRTH SIBLINGS. (a) In this section:


(1) "Multiple birth sibling" means a twin, triplet, quadruplet, or other sibling resulting from a multiple birth.


(2) "Parent" includes a person standing in parental relation.


(b) The parent of multiple birth siblings who are assigned to the same grade level and school may request in writing, not later than the 14th day after the first day of enrollment, that the school place the siblings in the same classroom or in separate classrooms.


(c) Except as provided by Subsection (d) or (g), a school shall provide the multiple birth siblings with the classroom placement requested by the parent.


(d) At the end of the first grading period following the multiple birth siblings' enrollment in the school, if the principal of the school, in consultation with the teacher of each classroom in which the multiple birth siblings are placed, determines that the requested classroom placement is disruptive to the school, the principal may determine the appropriate classroom placement for the siblings.


(e) A parent may appeal the principal's classroom placement of multiple birth siblings in the manner provided by school district policy. During an appeal, the multiple birth siblings shall remain in the classroom chosen by the parent.


(f) The school may recommend to a parent the appropriate classroom placement for the multiple birth siblings and may provide professional educational advice to assist the parent with the decision regarding appropriate classroom placement.


(g) A school district is not required to place multiple birth siblings in separate classrooms if the request would require the school district to add an additional class to the grade level of the multiple birth siblings.


(h) This section does not affect:


(1) a right or obligation under Subchapter A, Chapter 29, or under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) regarding the individual placement decisions of the school district admission, review, and dismissal committee; or


(2) the right of a school district or teacher to remove a student from a classroom under Chapter 37.


Added by Acts 2007, 80th Leg., R.S., Ch. 91 (H.B. 314), Sec. 1, eff. May 15, 2007.


SUBCHAPTER C. OPERATION OF SCHOOLS AND SCHOOL ATTENDANCE



Sec. 25.081. OPERATION OF SCHOOLS. (a) Except as authorized under Subsection (b) of this section, Section 25.0815, Section 25.084, or Section 29.0821, for each school year each school district must operate for at least 75,600 minutes, including time allocated for instruction, intermissions, and recesses for students.


(b) The commissioner may approve the operation of schools for fewer than the number of minutes required under Subsection (a) if disaster, flood, extreme weather conditions, fuel curtailment, or another calamity causes the closing of schools.


(c) If the commissioner does not approve reduced operation time under Subsection (b), a school district may add additional minutes to the end of the district's normal school hours as necessary to compensate for minutes lost due to school closures caused by disaster, flood, extreme weather conditions, fuel curtailment, or another calamity.


(d) The commissioner may adopt rules to implement this section, including rules:


(1) for the application, on the basis of the minimum minutes of operation required by Subsection (a), of any provision of this title that refers to a minimum number of days of instruction under this section;


(2) to determine the minutes of operation that are equivalent to a day;


(3) defining minutes of operation and instructional time; and


(4) establishing the minimum number of minutes of instructional time required for a full-day and a half-day program to meet the time requirements under Subsection (a).


(e) A school district or education program is exempt from the minimum minutes of operation requirement if the district's or program's average daily attendance is calculated under Section 48.005(j).


(f) The commissioner may proportionally reduce the amount of funding a district receives under Chapter 46, 48, or 49 and the average daily attendance calculation for the district if the district operates on a calendar that provides fewer minutes of operation than required under Subsection (a).


(g) A school district may not provide student instruction on Memorial Day. If a school district would be required to provide student instruction on Memorial Day to compensate for minutes of instruction lost because of school closures caused by disaster, flood, extreme weather conditions, fuel curtailment, or another calamity, the commissioner shall approve the instruction of students for fewer than the number of minutes required under Subsection (a).


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 824, Sec. 2, eff. June 20, 2003.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1084 (H.B. 2610), Sec. 1, eff. June 19, 2015.


Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 1, eff. June 15, 2017.


Acts 2017, 85th Leg., R.S., Ch. 1144 (H.B. 441), Sec. 1, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 5, eff. June 6, 2019.


Acts 2019, 86th Leg., R.S., Ch. 467 (H.B. 4170), Sec. 21.001(5), eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.018, eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.019, eff. September 1, 2019.


Sec. 25.0811. FIRST DAY OF INSTRUCTION. (a) Except as provided by this section, a school district may not begin instruction for students for a school year before the fourth Monday in August. A school district may:


(1) begin instruction for students for a school year before the fourth Monday in August if the district operates a year-round system under Section 25.084; or


(2) begin instruction for students for a school year on or after the first Monday in August at a campus or at not more than 20 percent of the campuses in the district if:


(A) the district has a student enrollment of 190,000 or more;


(B) the district at the beginning of the school year provides, financed with local funds, days of instruction for students at the campus or at each of the multiple campuses, in addition to the minimum number of days of instruction required under Section 25.081;


(C) the campus or each of the multiple campuses are undergoing comprehensive reform, as determined by the board of trustees of the district; and


(D) a majority of the students at the campus or at each of the multiple campuses are educationally disadvantaged.


(b) Notwithstanding Subsection (a), a school district that does not offer each grade level from kindergarten through grade 12 and whose prospective or former students generally attend school in another state for the grade levels the district does not offer may start school on any date permitted under Subsection (a) or the law of the other state.


(c) Repealed by Acts 2006, 79th Leg., 3rd C.S., Ch. 5, Sec. 9.03, eff. May 31, 2006.


Added by Acts 2001, 77th Leg., ch. 909, Sec. 1, eff. Sept. 1, 2001.


Amended by:


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 9.02, eff. May 31, 2006.


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 9.03, eff. May 31, 2006.


Acts 2007, 80th Leg., R.S., Ch. 708 (H.B. 2171), Sec. 1, eff. June 15, 2007.


Acts 2011, 82nd Leg., R.S., Ch. 277 (H.B. 1555), Sec. 1, eff. June 17, 2011.


Sec. 25.0812. LAST DAY OF SCHOOL. (a) Except as provided by Subsection (b), a school district may not schedule the last day of school for students for a school year before May 15.


(b) Notwithstanding Subsection (a), a school district that does not offer each grade level from kindergarten through grade 12 and whose prospective or former students generally attend school in another state for the grade levels the district does not offer may schedule the last day of school on any date permitted under Subsection (a) or the law of the other state.


Added by Acts 2015, 84th Leg., R.S., Ch. 1084 (H.B. 2610), Sec. 2, eff. June 19, 2015.


Sec. 25.0815. OPERATION AND INSTRUCTIONAL TIME WAIVERS FOR SCHOOL SAFETY TRAINING. (a) The commissioner shall provide a waiver allowing for fewer minutes of operation and instructional time than required under Section 25.081(a) for a school district that requires each educator employed by the district to attend an approved school safety training course.


(b) A waiver under this section:


(1) must allow sufficient time for the school district's educators to attend the school safety training course; and


(2) may not:


(A) result in an inadequate number of minutes of instructional time for students; or


(B) reduce the number of minutes of operation and instructional time by more than 420 minutes.


(c) To be approved under this section, a school safety training course must apply to the Texas School Safety Center. The Texas School Safety Center may approve a training course if the course satisfies the training requirements as determined by the center.


(d) The commissioner may adopt rules to implement this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 6, eff. June 6, 2019.


Sec. 25.082. PLEDGES OF ALLEGIANCE; MINUTE OF SILENCE. (a) Repealed by Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 9, eff. June 15, 2017.


(b) The board of trustees of each school district and the governing board of each open-enrollment charter school shall require students, once during each school day at each campus, to recite:


(1) the pledge of allegiance to the United States flag in accordance with 4 U.S.C. Section 4; and


(2) the pledge of allegiance to the state flag in accordance with Subchapter C, Chapter 3100, Government Code.


(b-1) The board of trustees of each school district and the governing board of each open-enrollment charter school shall require that the United States and Texas flags be prominently displayed in accordance with 4 U.S.C. Sections 5-10 and Chapter 3100, Government Code, in each campus classroom to which a student is assigned at the time the pledges of allegiance to those flags are recited. A district or school is not required to spend federal, state, or local district or school funds to acquire flags required under this subsection. A district or school may raise money or accept gifts, grants, and donations to acquire flags required under this subsection.


(c) On written request from a student's parent or guardian, a school district or open-enrollment charter school shall excuse the student from reciting a pledge of allegiance under Subsection (b).


(d) The board of trustees of each school district and the governing board of each open-enrollment charter school shall provide for the observance of one minute of silence at each campus following the recitation of the pledges of allegiance to the United States and Texas flags under Subsection (b). During the one-minute period, each student may, as the student chooses, reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student. Each teacher or other school employee in charge of students during that period shall ensure that each of those students remains silent and does not act in a manner that is likely to interfere with or distract another student.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 126, Sec. 1, 2, eff. Sept. 1, 2003.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 881 (H.B. 773), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1140 (S.B. 2), Sec. 42, eff. September 1, 2013.


Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 2, eff. June 15, 2017.


Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 9, eff. June 15, 2017.


Sec. 25.0821. MINUTE OF SILENCE TO COMMEMORATE SEPTEMBER 11, 2001. (a) To commemorate the events of September 11, 2001, in each year that date falls on a regular school day, each public elementary or secondary school shall provide for the observance of one minute of silence at the beginning of the first class period of that day.


(b) Immediately before the period of observance required by this section, the class instructor shall make a statement of reference to the memory of individuals who died on September 11, 2001.


(c) The period of observance required by this section may be held in conjunction with the minute of silence required by Section 25.082.


Added by Acts 2013, 83rd Leg., R.S., Ch. 925 (H.B. 1501), Sec. 1, eff. June 14, 2013.


Sec. 25.0822. PATRIOTIC SOCIETY ACCESS TO STUDENTS. (a) In this section, "patriotic society" means a youth membership organization listed in Title 36 of the United States Code with an educational purpose that promotes patriotism and civic involvement.


(b) At the beginning of each school year, the board of trustees of an independent school district shall adopt a policy to allow the principal of a public school campus to provide representatives of a patriotic society with the opportunity to speak to students during regular school hours about membership in the society and the ways in which membership may promote a student's educational interest and level of civic involvement, leading to the student's increased potential for self-improvement and ability to contribute to improving the student's school and community.


(c) The board policy shall give a principal complete discretion over the specific date and time of the opportunity required to be provided under this section, except that the policy shall allow the principal to limit:


(1) the opportunity provided to a patriotic society to a single school day; and


(2) any presentation made to students as a result of the opportunity to 10 minutes in length.


Added by Acts 2017, 85th Leg., R.S., Ch. 925 (S.B. 1566), Sec. 8, eff. September 1, 2017.


Sec. 25.083. SCHOOL DAY INTERRUPTIONS. (a) The board of trustees of each school district shall adopt and strictly enforce a policy limiting interruptions of classes during the school day for nonacademic activities such as announcements and sales promotions. At a minimum, the policy must limit announcements other than emergency announcements to once during the school day.


(b) The board of trustees of each school district shall adopt and strictly enforce a policy limiting the removal of students from class for remedial tutoring or test preparation. A district may not remove a student from a regularly scheduled class for remedial tutoring or test preparation if, as a result of the removal, the student would miss more than 10 percent of the school days on which the class is offered, unless the student's parent or another person standing in parental relation to the student provides to the district written consent for removal from class for such purpose.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 5(a), eff. June 10, 2013.


Sec. 25.084. YEAR-ROUND SYSTEM. (a) A school district may operate its schools year-round on either a single-track or a multitrack calendar. If a school district adopts a year-round system, the district may modify:


(1) the number of contract days of employees and the number of days of operation, including any time required for staff development, planning and preparation, and continuing education, otherwise required by law;


(2) testing dates, data reporting, and related matters;


(3) the date of the first day of instruction of the school year under Section 25.0811 for a school that was operating year-round for the 2000-2001 school year; and


(4) a student's eligibility to participate in extracurricular activities when the student's calendar track is not in session.



Text of subsection effective until September 01, 2020



(b) The operation of schools year-round by a district does not affect the amount of state funds to which the district is entitled under Chapter 48.



Text of subsection effective on September 01, 2020



(b) Except as provided by Subsection (c), the operation of schools year-round by a district does not affect the amount of state funds to which the district is entitled under Chapter 48.



Text of subsection effective on September 01, 2020



(c) A district that adopts a year-round system under this section may receive the incentive aid under Section 48.0051 if the district meets the criteria for receiving the incentive under that section.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 909, Sec. 2, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 1.004(a), eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 1.004(b), eff. September 1, 2020.


Sec. 25.085. COMPULSORY SCHOOL ATTENDANCE. (a) A child who is required to attend school under this section shall attend school each school day for the entire period the program of instruction is provided.


(b) Unless specifically exempted by Section 25.086, a child who is at least six years of age, or who is younger than six years of age and has previously been enrolled in first grade, and who has not yet reached the child's 19th birthday shall attend school.


(c) On enrollment in prekindergarten or kindergarten, a child shall attend school.


(d) Unless specifically exempted by Section 25.086, a student enrolled in a school district must attend:


(1) an extended-year program for which the student is eligible that is provided by the district for students identified as likely not to be promoted to the next grade level or tutorial classes required by the district under Section 29.084;


(2) an accelerated reading instruction program to which the student is assigned under Section 28.006(g);


(3) an accelerated instruction program to which the student is assigned under Section 28.0211;


(4) a basic skills program to which the student is assigned under Section 29.086; or


(5) a summer program provided under Section 37.008(l) or Section 37.021.


(e) A person who voluntarily enrolls in school or voluntarily attends school after the person's 19th birthday shall attend school each school day for the entire period the program of instruction is offered. A school district may revoke for the remainder of the school year the enrollment of a person who has more than five absences in a semester that are not excused under Section 25.087, except a school district may not revoke the enrollment of a person under this subsection on a day on which the person is physically present at school. A person whose enrollment is revoked under this subsection may be considered an unauthorized person on school district grounds for purposes of Section 37.107.


(f) The board of trustees of a school district may adopt a policy requiring a person described by Subsection (e) who is under 21 years of age to attend school until the end of the school year. Section 65.003(a), Family Code, does not apply to a person subject to a policy adopted under this subsection. Sections 25.093 and 25.095 do not apply to the parent of a person subject to a policy adopted under this subsection.


(g) After the third unexcused absence of a person described by Subsection (e), a school district shall issue a warning letter to the person that states the person's enrollment may be revoked for the remainder of the school year if the person has more than five unexcused absences in a semester.


(h) As an alternative to revoking a person's enrollment under Subsection (e), a school district may impose a behavior improvement plan described by Section 25.0915(a-1)(1).



Text of subsection effective on September 01, 2020



(i) Notwithstanding any other provision of this section, a student enrolled in a school district is not required to attend school for any additional instructional days described by Section 48.0051.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1019, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 396, Sec. 2.10, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 711, Sec. 1, eff. June 18, 1999; Acts 2003, 78th Leg., ch. 1055, Sec. 3, eff. June 20, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 50 (H.B. 566), Sec. 1, eff. May 10, 2007.


Acts 2007, 80th Leg., R.S., Ch. 850 (H.B. 1137), Sec. 2, eff. June 15, 2007.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 7, eff. September 1, 2015.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.011, eff. September 1, 2020.


Sec. 25.086. EXEMPTIONS.


(a) A child is exempt from the requirements of compulsory school attendance if the child:


(1) attends a private or parochial school that includes in its course a study of good citizenship;


(2) is eligible to participate in a school district's special education program under Section 29.003 and cannot be appropriately served by the resident district;


(3) has a physical or mental condition of a temporary and remediable nature that makes the child's attendance infeasible and holds a certificate from a qualified physician specifying the temporary condition, indicating the treatment prescribed to remedy the temporary condition, and covering the anticipated period of the child's absence from school for the purpose of receiving and recuperating from that remedial treatment;


(4) is expelled in accordance with the requirements of law in a school district that does not participate in a mandatory juvenile justice alternative education program under Section 37.011;


(5) is at least 17 years of age and:


(A) is attending a course of instruction to prepare for the high school equivalency examination, and:


(i) has the permission of the child's parent or guardian to attend the course;


(ii) is required by court order to attend the course;


(iii) has established a residence separate and apart from the child's parent, guardian, or other person having lawful control of the child; or


(iv) is homeless; or


(B) has received a high school diploma or high school equivalency certificate;


(6) is at least 16 years of age and is attending a course of instruction to prepare for the high school equivalency examination, if:


(A) the child is recommended to take the course of instruction by a public agency that has supervision or custody of the child under a court order; or


(B) the child is enrolled in a Job Corps training program under the Workforce Investment Act of 1998 (29 U.S.C. Section 2801 et seq.);


(7) is at least 16 years of age and is enrolled in a high school diploma program under Chapter 18;


(8) is enrolled in the Texas Academy of Mathematics and Science under Subchapter G, Chapter 105;


(9) is enrolled in the Texas Academy of Leadership in the Humanities;


(10) is enrolled in the Texas Academy of Mathematics and Science at The University of Texas at Brownsville;


(11) is enrolled in the Texas Academy of International Studies; or


(12) is specifically exempted under another law.


(b) This section does not relieve a school district in which a child eligible to participate in the district's special education program resides of its fiscal and administrative responsibilities under Subchapter A, Chapter 29, or of its responsibility to provide a free appropriate public education to a child with a disability.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1015, Sec. 1, eff. June 19, 1997; Acts 1997, 75th Leg., ch. 1019, Sec. 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1282, Sec. 2, eff. June 18, 1999.


Amended by:


Acts 2005, 79th Leg., Ch. 377 (S.B. 1395), Sec. 3, eff. June 17, 2005.


Acts 2005, 79th Leg., Ch. 887 (S.B. 1452), Sec. 2, eff. June 17, 2005.


Acts 2005, 79th Leg., Ch. 1339 (S.B. 151), Sec. 6, eff. June 18, 2005.


Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 4.003, eff. September 1, 2007.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 1.04, eff. June 10, 2019.


Sec. 25.087. EXCUSED ABSENCES. (a) A person required to attend school, including a person required to attend school under Section 25.085(e), may be excused for temporary absence resulting from any cause acceptable to the teacher, principal, or superintendent of the school in which the person is enrolled.


(b) A school district shall excuse a student from attending school for:


(1) the following purposes, including travel for those purposes:


(A) observing religious holy days;


(B) attending a required court appearance;


(C) appearing at a governmental office to complete paperwork required in connection with the student's application for United States citizenship;


(D) taking part in a United States naturalization oath ceremony;


(E) serving as an election clerk; or


(F) if the student is in the conservatorship of the Department of Family and Protective Services, participating, as determined and documented by the department, in an activity:


(i) ordered by a court under Chapter 262 or 263, Family Code, provided that it is not practicable to schedule the participation outside of school hours; or


(ii) required under a service plan under Subchapter B, Chapter 263, Family Code; or


(2) a temporary absence resulting from an appointment with health care professionals for the student or the student's child if the student commences classes or returns to school on the same day of the appointment.


(b-1) A school district may adopt a policy excusing a student from attending school for service as a student early voting clerk in an election.


(b-2) A school district may excuse a student from attending school to visit an institution of higher education accredited by a generally recognized accrediting organization during the student's junior and senior years of high school for the purpose of determining the student's interest in attending the institution of higher education, provided that:


(1) the district may not excuse for this purpose more than two days during the student's junior year and two days during the student's senior year; and


(2) the district adopts:


(A) a policy to determine when an absence will be excused for this purpose; and


(B) a procedure to verify the student's visit at the institution of higher education.


(b-3) A temporary absence for purposes of Subsection (b)(2) includes the temporary absence of a student diagnosed with autism spectrum disorder on the day of the student's appointment with a health care practitioner, as described by Section 1355.015(b), Insurance Code, to receive a generally recognized service for persons with autism spectrum disorder, including applied behavioral analysis, speech therapy, and occupational therapy.


(b-4) A school district shall excuse a student whose parent, stepparent, or legal guardian is an active duty member of the uniformed services as defined by Section 162.002 and has been called to duty for, is on leave from, or immediately returned from continuous deployment of at least four months outside the locality where the parent, stepparent, or guardian regularly resides, to visit with the student's parent, stepparent, or guardian. A school district may not excuse a student under this subsection more than five days in a school year. An excused absence under this subsection must be taken:


(1) not earlier than the 60th day before the date of deployment; or


(2) not later than the 30th day after the date of return from deployment.


(b-5) A school district shall excuse a student who is 17 years of age or older from attending school to pursue enlistment in a branch of the armed services of the United States or the Texas National Guard, provided that:


(1) the district may not excuse for this purpose more than four days of school during the period the student is enrolled in high school; and


(2) the district verifies the student's activities related to pursuing enlistment in a branch of the armed services or the Texas National Guard.


(b-6) Each school district shall adopt procedures to verify a student's activities as described by Subsection (b-5).


(c) A school district may excuse a student in grades 6 through 12 for the purpose of sounding "Taps" at a military honors funeral held in this state for a deceased veteran.


(d) A student whose absence is excused under Subsection (b), (b-1), (b-2), (b-4), (b-5), or (c) may not be penalized for that absence and shall be counted as if the student attended school for purposes of calculating the average daily attendance of students in the school district. A student whose absence is excused under Subsection (b), (b-1), (b-2), (b-4), (b-5), or (c) shall be allowed a reasonable time to make up school work missed on those days. If the student satisfactorily completes the school work, the day of absence shall be counted as a day of compulsory attendance.


(e) A school district may excuse a student for the purposes provided by Subsections (b)(1)(E) and (b-1) for a maximum of two days in a school year.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 651, Sec. 1, eff. June 18, 1999; Acts 1999, 76th Leg., ch. 711, Sec. 2, eff. June 18, 1999.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 479 (H.B. 2455), Sec. 1, eff. June 16, 2007.


Acts 2007, 80th Leg., R.S., Ch. 660 (H.B. 1187), Sec. 2, eff. June 15, 2007.


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.002(a), eff. September 1, 2009.


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.002(b), eff. September 1, 2009.


Acts 2009, 81st Leg., R.S., Ch. 455 (H.B. 2542), Sec. 1, eff. June 19, 2009.


Acts 2009, 81st Leg., R.S., Ch. 455 (H.B. 2542), Sec. 2, eff. June 19, 2009.


Acts 2009, 81st Leg., R.S., Ch. 517 (S.B. 1134), Sec. 3, eff. September 1, 2009.


Acts 2009, 81st Leg., R.S., Ch. 595 (H.B. 192), Sec. 1, eff. June 19, 2009.


Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 7.005, eff. September 1, 2011.


Acts 2013, 83rd Leg., R.S., Ch. 249 (H.B. 455), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 404 (S.B. 260), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 542 (S.B. 553), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 688 (H.B. 2619), Sec. 11, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1354 (S.B. 1404), Sec. 2, eff. June 14, 2013.


Acts 2015, 84th Leg., R.S., Ch. 944 (S.B. 206), Sec. 2, eff. September 1, 2015.


Acts 2017, 85th Leg., R.S., Ch. 213 (S.B. 1152), Sec. 1, eff. May 28, 2017.


Sec. 25.088. SCHOOL ATTENDANCE OFFICER. The school attendance officer may be selected by:


(1) the county school trustees of any county;


(2) the board of trustees of any school district or the boards of trustees of two or more school districts jointly; or


(3) the governing body of an open-enrollment charter school.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1504, Sec. 21, eff. Sept. 1, 2001.


Sec. 25.089. COMPENSATION OF ATTENDANCE OFFICER; DUAL SERVICE. (a) An attendance officer may be compensated from the funds of the county, independent school district, or open-enrollment charter school, as applicable.


(b) An attendance officer may be the probation officer or an officer of the juvenile court of the county.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1504, Sec. 22, eff. Sept. 1, 2001.


Sec. 25.090. ATTENDANCE OFFICER NOT SELECTED. (a) In those counties and independent school districts where an attendance officer has not been selected, the duties of attendance officer shall be performed by the school superintendents and peace officers of the counties and districts.


(b) If the governing body of an open-enrollment charter school has not selected an attendance officer, the duties of attendance officer shall be performed by the peace officers of the county in which the school is located.


(c) Additional compensation may not be paid for services performed under this section.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1504, Sec. 23, eff. Sept. 1, 2001.


Sec. 25.091. POWERS AND DUTIES OF PEACE OFFICERS AND OTHER ATTENDANCE OFFICERS.


(a) A peace officer serving as an attendance officer has the following powers and duties concerning enforcement of compulsory school attendance requirements:


(1) to investigate each case of a violation of compulsory school attendance requirements referred to the peace officer;


(2) to enforce compulsory school attendance requirements by:


(A) applying truancy prevention measures adopted under Section 25.0915 to the student; and


(B) if the truancy prevention measures fail to meaningfully address the student's conduct:


(i) referring the student to a truancy court if the student has unexcused absences for the amount of time specified under Section 65.003(a), Family Code; or


(ii) filing a complaint in a county, justice, or municipal court against a parent who violates Section 25.093;


(3) to serve court-ordered legal process;


(4) to review school attendance records for compliance by each student investigated by the officer;


(5) to maintain an investigative record on each compulsory school attendance requirement violation and related court action and, at the request of a court, the board of trustees of a school district, or the commissioner, to provide a record to the individual or entity requesting the record; and


(6) to make a home visit or otherwise contact the parent of a student who is in violation of compulsory school attendance requirements, except that a peace officer may not enter a residence without the permission of the parent of a student required under this subchapter to attend school or of the tenant or owner of the residence except to lawfully serve court-ordered legal process on the parent.


(b) An attendance officer employed by a school district who is not commissioned as a peace officer has the following powers and duties with respect to enforcement of compulsory school attendance requirements:


(1) to investigate each case of a violation of the compulsory school attendance requirements referred to the attendance officer;


(2) to enforce compulsory school attendance requirements by:


(A) applying truancy prevention measures adopted under Section 25.0915 to the student; and


(B) if the truancy prevention measures fail to meaningfully address the student's conduct:


(i) referring the student to a truancy court if the student has unexcused absences for the amount of time specified under Section 65.003(a), Family Code; and


(ii) filing a complaint in a county, justice, or municipal court against a parent who violates Section 25.093;


(3) to monitor school attendance compliance by each student investigated by the officer;


(4) to maintain an investigative record on each compulsory school attendance requirement violation and related court action and, at the request of a court, the board of trustees of a school district, or the commissioner, to provide a record to the individual or entity requesting the record;


(5) to make a home visit or otherwise contact the parent of a student who is in violation of compulsory school attendance requirements, except that the attendance officer may not enter a residence without permission of the parent or of the owner or tenant of the residence; and


(6) at the request of a parent, to escort a student from any location to a school campus to ensure the student's compliance with compulsory school attendance requirements.


(b-1) A peace officer who has probable cause to believe that a child is in violation of the compulsory school attendance law under Section 25.085 may take the child into custody for the purpose of returning the child to the school campus of the child to ensure the child's compliance with compulsory school attendance requirements.


(c) In this section:


(1) "Parent" includes a person standing in parental relation.


(2) "Peace officer" has the meaning assigned by Article 2.12, Code of Criminal Procedure.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1514, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 137, Sec. 3, eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1058 (H.B. 2237), Sec. 5, eff. September 1, 2007.


Acts 2011, 82nd Leg., R.S., Ch. 1098 (S.B. 1489), Sec. 9, eff. September 1, 2011.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 8, eff. September 1, 2015.


Sec. 25.0915. TRUANCY PREVENTION MEASURES. (a) A school district shall adopt truancy prevention measures designed to:


(1) address student conduct related to truancy in the school setting before the student engages in conduct described by Section 65.003(a), Family Code; and


(2) minimize the need for referrals to truancy court for conduct described by Section 65.003(a), Family Code.


(a-1) As a truancy prevention measure under Subsection (a), a school district shall take one or more of the following actions:


(1) impose:


(A) a behavior improvement plan on the student that must be signed by an employee of the school, that the school district has made a good faith effort to have signed by the student and the student's parent or guardian, and that includes:


(i) a specific description of the behavior that is required or prohibited for the student;


(ii) the period for which the plan will be effective, not to exceed 45 school days after the date the contract becomes effective; or


(iii) the penalties for additional absences, including additional disciplinary action or the referral of the student to a truancy court; or


(B) school-based community service; or


(2) refer the student to counseling, mediation, mentoring, a teen court program, community-based services, or other in-school or out-of-school services aimed at addressing the student's truancy.


(a-2) A referral made under Subsection (a-1)(2) may include participation by the child's parent or guardian if necessary.


(a-3) A school district shall offer additional counseling to a student and may not refer the student to truancy court if the school determines that the student's truancy is the result of:


(1) pregnancy;


(2) being in the state foster program;


(3) homelessness; or


(4) being the principal income earner for the student's family.


(a-4) If a student fails to attend school without excuse on three or more days or parts of days within a four-week period but does not fail to attend school for the time described by Section 25.0951(a), the school district shall initiate truancy prevention measures under this section on the student.


(b) Each referral to truancy court for conduct described by Section 65.003(a), Family Code, must:


(1) be accompanied by a statement from the student's school certifying that:


(A) the school applied the truancy prevention measures adopted under Subsection (a) or (a-4) to the student; and


(B) the truancy prevention measures failed to meaningfully address the student's school attendance; and


(2) specify whether the student is eligible for or receives special education services under Subchapter A, Chapter 29.


(c) A truancy court shall dismiss a petition filed by a truant conduct prosecutor under Section 65.054, Family Code, if the court determines that the school district's referral:


(1) does not comply with Subsection (b);


(2) does not satisfy the elements required for truant conduct;


(3) is not timely filed, unless the school district delayed the referral under Section 25.0951(d); or


(4) is otherwise substantively defective.


(d) Except as provided by Subsection (e), a school district shall employ a truancy prevention facilitator or juvenile case manager to implement the truancy prevention measures required by this section and any other effective truancy prevention measures as determined by the school district or campus. At least annually, the truancy prevention facilitator shall meet to discuss effective truancy prevention measures with a case manager or other individual designated by a truancy court to provide services to students of the school district in truancy cases.


(e) Instead of employing a truancy prevention facilitator, a school district may designate an existing district employee or juvenile case manager to implement the truancy prevention measures required by this section and any other effective truancy prevention measures as determined by the school district or campus.


(f) The agency shall adopt rules:


(1) creating minimum standards for truancy prevention measures adopted by a school district under this section; and


(2) establishing a set of best practices for truancy prevention measures.


(g) The agency shall adopt rules to provide for sanctions for a school district found to be not in compliance with this section.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1098 (S.B. 1489), Sec. 10, eff. September 1, 2011.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 1407 (S.B. 393), Sec. 8, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1409 (S.B. 1114), Sec. 2, eff. September 1, 2013.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 9, eff. September 1, 2015.


Sec. 25.092. MINIMUM ATTENDANCE FOR CLASS CREDIT OR FINAL GRADE. (a) Except as provided by this section, a student in any grade level from kindergarten through grade 12 may not be given credit or a final grade for a class unless the student is in attendance for at least 90 percent of the days the class is offered.


(a-1) A student who is in attendance for at least 75 percent but less than 90 percent of the days a class is offered may be given credit or a final grade for the class if the student completes a plan approved by the school's principal that provides for the student to meet the instructional requirements of the class. A student under the jurisdiction of a court in a criminal or juvenile justice proceeding may not receive credit or a final grade under this subsection without the consent of the judge presiding over the student's case.


(a-2) Subsection (a) does not apply to a student who receives credit by examination for a class as provided by Section 28.023.


(b) The board of trustees of each school district shall appoint one or more attendance committees to hear petitions for class credit or a final grade by students who are in attendance fewer than the number of days required under Subsection (a) and have not earned class credit or a final grade under Subsection (a-1). Classroom teachers shall comprise a majority of the membership of the committee. A committee may give class credit or a final grade to a student because of extenuating circumstances. Each board of trustees shall establish guidelines to determine what constitutes extenuating circumstances and shall adopt policies establishing alternative ways for students to make up work or regain credit or a final grade lost because of absences. The alternative ways must include at least one option that does not require a student to pay a fee authorized under Section 11.158(a)(15). A certified public school employee may not be assigned additional instructional duties as a result of this section outside of the regular workday unless the employee is compensated for the duties at a reasonable rate of pay.


(c) A member of an attendance committee is not personally liable for any act or omission arising out of duties as a member of an attendance committee.


(d) If a student is denied credit or a final grade for a class by an attendance committee, the student may appeal the decision to the board of trustees. The decision of the board may be appealed by trial de novo to the district court of the county in which the school district's central administrative office is located.


(e) This section does not affect the provision of Section 25.087(b) regarding a student's excused absence from school to observe religious holy days.


(f) The availability of the option developed under Subsection (b) must be substantially the same as the availability of the educational program developed under Section 11.158(a)(15).


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 698, Sec. 2, eff. June 18, 1999.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 850 (H.B. 1137), Sec. 3, eff. June 15, 2007.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 6(a), eff. June 10, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 7(a), eff. June 10, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1029 (H.B. 2694), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1203 (S.B. 1365), Sec. 1, eff. June 14, 2013.


Sec. 25.093. PARENT CONTRIBUTING TO NONATTENDANCE. (a) If a warning is issued as required by Section 25.095(a), the parent with criminal negligence fails to require the child to attend school as required by law, and the child has absences for the amount of time specified under Section 65.003(a), Family Code, the parent commits an offense.


(b) The attendance officer or other appropriate school official shall file a complaint against the parent in:


(1) the constitutional county court of the county in which the parent resides or in which the school is located, if the county has a population of 1.75 million or more;


(2) a justice court of any precinct in the county in which the parent resides or in which the school is located; or


(3) a municipal court of the municipality in which the parent resides or in which the school is located.


(c) An offense under Subsection (a) is a misdemeanor, punishable by fine only, in an amount not to exceed:


(1) $100 for a first offense;


(2) $200 for a second offense;


(3) $300 for a third offense;


(4) $400 for a fourth offense; or


(5) $500 for a fifth or subsequent offense.


(c-1) Each day the child remains out of school may constitute a separate offense. Two or more offenses under Subsection (a) may be consolidated and prosecuted in a single action. If the court orders deferred disposition under Article 45.051, Code of Criminal Procedure, the court may require the defendant to provide personal services to a charitable or educational institution as a condition of the deferral.


(d) A fine collected under this section shall be deposited as follows:


(1) one-half shall be deposited to the credit of the operating fund of, as applicable:


(A) the school district in which the child attends school;


(B) the open-enrollment charter school the child attends; or


(C) the juvenile justice alternative education program that the child has been ordered to attend; and


(2) one-half shall be deposited to the credit of:


(A) the general fund of the county, if the complaint is filed in the justice court or the constitutional county court; or


(B) the general fund of the municipality, if the complaint is filed in municipal court.


(e) At the trial of any person charged with violating this section, the attendance records of the child may be presented in court by any authorized employee of the school district or open-enrollment charter school, as applicable.


(f) The court in which a conviction, deferred adjudication, or deferred disposition for an offense under Subsection (a) occurs may order the defendant to attend a program for parents of students with unexcused absences that provides instruction designed to assist those parents in identifying problems that contribute to the students' unexcused absences and in developing strategies for resolving those problems if a program is available.


(g) If a parent refuses to obey a court order entered under this section, the court may punish the parent for contempt of court under Section 21.002, Government Code.


(h) It is an affirmative defense to prosecution for an offense under Subsection (a) that one or more of the absences required to be proven under Subsection (a) was excused by a school official or should be excused by the court. The burden is on the defendant to show by a preponderance of the evidence that the absence has been or should be excused. A decision by the court to excuse an absence for purposes of this section does not affect the ability of the school district to determine whether to excuse the absence for another purpose.


(i) In this section, "parent" includes a person standing in parental relation.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 865, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1403, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1504, Sec. 24, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1514, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 137, Sec. 4, 5, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 283, Sec. 38, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 6.001, eff. Sept. 1, 2003.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 148 (H.B. 734), Sec. 1, eff. September 1, 2011.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 11, eff. September 1, 2015.


Sec. 25.095. WARNING NOTICES. (a) A school district or open-enrollment charter school shall notify a student's parent in writing at the beginning of the school year that if the student is absent from school on 10 or more days or parts of days within a six-month period in the same school year:


(1) the student's parent is subject to prosecution under Section 25.093; and


(2) the student is subject to referral to a truancy court for truant conduct under Section 65.003(a), Family Code.


(b) A school district shall notify a student's parent if the student has been absent from school, without excuse under Section 25.087, on three days or parts of days within a four-week period. The notice must:


(1) inform the parent that:


(A) it is the parent's duty to monitor the student's school attendance and require the student to attend school; and


(B) the student is subject to truancy prevention measures under Section 25.0915; and


(2) request a conference between school officials and the parent to discuss the absences.


(c) The fact that a parent did not receive a notice under Subsection (a) or (b) does not create a defense under Section 25.093 or under Section 65.003(a), Family Code.


(d) In this section, "parent" includes a person standing in parental relation.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1504, Sec. 25, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1514, Sec. 5, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 6.002, eff. Sept. 1, 2003.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 12, eff. September 1, 2015.


Sec. 25.0951. SCHOOL DISTRICT COMPLAINT OR REFERRAL FOR FAILURE TO ATTEND SCHOOL. (a) If a student fails to attend school without excuse on 10 or more days or parts of days within a six-month period in the same school year, a school district shall within 10 school days of the student's 10th absence refer the student to a truancy court for truant conduct under Section 65.003(a), Family Code.


(b) If a student fails to attend school without excuse as specified by Subsection (a), a school district may file a complaint against the student's parent in a county, justice, or municipal court for an offense under Section 25.093 if the school district provides evidence of the parent's criminal negligence. In this subsection, "parent" includes a person standing in parental relation.


(c) A court shall dismiss a complaint made by a school district under Subsection (b) that:


(1) does not comply with this section;


(2) does not allege the elements required for the offense;


(3) is not timely filed, unless the school district delayed the referral under Subsection (d); or


(4) is otherwise substantively defective.


(d) Notwithstanding Subsection (a), a school district may delay a referral of a student for truant conduct, or may choose to not refer a student for truant conduct, if the school district:


(1) is applying truancy prevention measures to the student under Section 25.0915; and


(2) determines that the truancy prevention measures are succeeding and it is in the best interest of the student that a referral be delayed or not be made.


Added by Acts 2001, 77th Leg., ch. 1514, Sec. 6, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 137, Sec. 9, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 949 (H.B. 1575), Sec. 37, eff. September 1, 2005.


Acts 2007, 80th Leg., R.S., Ch. 908 (H.B. 2884), Sec. 31, eff. September 1, 2007.


Acts 2007, 80th Leg., R.S., Ch. 984 (S.B. 1161), Sec. 1, eff. June 15, 2007.


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.003, eff. September 1, 2009.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 13, eff. September 1, 2015.


Sec. 25.0952. PROCEDURES APPLICABLE TO PARENT CONTRIBUTING TO NONATTENDANCE OFFENSE. In a proceeding based on a complaint under Section 25.093, the court shall, except as otherwise provided by this chapter, use the procedures and exercise the powers authorized by Chapter 45, Code of Criminal Procedure.


Added by Acts 2001, 77th Leg., ch. 1514, Sec. 6, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 137, Sec. 10, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 283, Sec. 40, eff. Sept. 1, 2003.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 14, eff. September 1, 2015.


SUBCHAPTER D. STUDENT/TEACHER RATIOS; CLASS SIZE



Sec. 25.111. STUDENT/TEACHER RATIOS. Except as provided by Section 25.112, each school district must employ a sufficient number of teachers certified under Subchapter B, Chapter 21, to maintain an average ratio of not less than one teacher for each 20 students in average daily attendance.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.112. CLASS SIZE. (a) Except as otherwise authorized by this section, a school district may not enroll more than 22 students in a kindergarten, first, second, third, or fourth grade class. That limitation does not apply during:


(1) any 12-week period of the school year selected by the district, in the case of a district whose average daily attendance is adjusted under Section 48.005(c); or


(2) the last 12 weeks of any school year in the case of any other district.


(b) Not later than the 30th day after the first day of the 12-week period for which a district whose average daily attendance is adjusted under Section 48.005(c) is claiming an exemption under Subsection (a), the district shall notify the commissioner in writing that the district is claiming an exemption for the period stated in the notice.


(c) In determining the number of students to enroll in any class, a school district shall consider the subject to be taught, the teaching methodology to be used, and any need for individual instruction.


(d) On application of a school district, the commissioner may except the district from the limit in Subsection (a) if the commissioner finds the limit works an undue hardship on the district. An exception expires at the end of the school year for which it is granted.


(e) A school district seeking an exception under Subsection (d) shall notify the commissioner and apply for the exception not later than the later of:


(1) October 1; or


(2) the 30th day after the first school day the district exceeds the limit in Subsection (a).


(f) If a school district repeatedly fails to comply with this section, the commissioner may take any appropriate action authorized to be taken by the commissioner under Section 39.131.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 889, Sec. 1, eff. June 14, 2001.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 1347 (S.B. 300), Sec. 2, eff. June 19, 2009.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.020, eff. September 1, 2019.


Sec. 25.113. NOTICE OF CLASS SIZE. (a) A campus or district that is granted an exception under Section 25.112(d) from class size limits shall provide written notice of the exception to the parent of or person standing in parental relation to each student affected by the exception. The notice must be in conspicuous bold or underlined print and:


(1) specify the class for which an exception from the limit imposed by Section 25.112(a) was granted;


(2) state the number of children in the class for which the exception was granted; and


(3) be included in a regular mailing or other communication from the campus or district, such as information sent home with students.


(b) The notice required by Subsection (a) must be provided not later than the 31st day after:


(1) the first day of the school year; or


(2) the date the exception is granted, if the exception is granted after the beginning of the school year.


Added by Acts 2001, 77th Leg., ch. 889, Sec. 2, eff. June 14, 2001.


Sec. 25.114. STUDENT/TEACHER RATIOS IN PHYSICAL EDUCATION CLASSES; CLASS SIZE. (a) In implementing the curriculum for physical education under Section 28.002(a)(2)(C), each school district shall establish specific objectives and goals the district intends to accomplish through the curriculum, including, to the extent practicable, student/teacher ratios that are small enough to enable the district to:


(1) carry out the purposes of and requirements for the physical education curriculum as provided under Section 28.002(d); and


(2) ensure the safety of students participating in physical education.


(b) If a district establishes a student to teacher ratio greater than 45 to 1 in a physical education class, the district shall specifically identify the manner in which the safety of the students will be maintained.


Added by Acts 2009, 81st Leg., R.S., Ch. 773 (S.B. 891), Sec. 2, eff. June 19, 2009.


SUBCHAPTER E. STUDENT EXPRESSION OF RELIGIOUS VIEWPOINTS



Sec. 25.151. STUDENT EXPRESSION. A school district shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.152. LIMITED PUBLIC FORUM; SCHOOL DISTRICT POLICY. (a) To ensure that the school district does not discriminate against a student's publicly stated voluntary expression of a religious viewpoint, if any, and to eliminate any actual or perceived affirmative school sponsorship or attribution to the district of a student's expression of a religious viewpoint, if any, a school district shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak. The policy regarding the limited public forum must also require the school district to:


(1) provide the forum in a manner that does not discriminate against a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject;


(2) provide a method, based on neutral criteria, for the selection of student speakers at school events and graduation ceremonies;


(3) ensure that a student speaker does not engage in obscene, vulgar, offensively lewd, or indecent speech; and


(4) state, in writing, orally, or both, that the student's speech does not reflect the endorsement, sponsorship, position, or expression of the district.


(b) The school district disclaimer required by Subsection (a)(4) must be provided at all graduation ceremonies. The school district must also continue to provide the disclaimer at any other event in which a student speaks publicly for as long as a need exists to dispel confusion over the district's nonsponsorship of the student's speech.


(c) Student expression on an otherwise permissible subject may not be excluded from the limited public forum because the subject is expressed from a religious viewpoint.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.153. RELIGIOUS EXPRESSION IN CLASS ASSIGNMENTS. Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments must be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school district. Students may not be penalized or rewarded on account of the religious content of their work.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.154. FREEDOM TO ORGANIZE RELIGIOUS GROUPS AND ACTIVITIES. Students may organize prayer groups, religious clubs, "see you at the pole" gatherings, or other religious gatherings before, during, and after school to the same extent that students are permitted to organize other noncurricular student activities and groups. Religious groups must be given the same access to school facilities for assembling as is given to other noncurricular groups without discrimination based on the religious content of the students' expression. If student groups that meet for nonreligious activities are permitted to advertise or announce meetings of the groups, the school district may not discriminate against groups that meet for prayer or other religious speech. A school district may disclaim school sponsorship of noncurricular groups and events in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.155. ADOPTION OF POLICY. A school district shall adopt and implement a local policy regarding a limited public forum and voluntary student expression of religious viewpoints. If a school district voluntarily adopts and follows the model policy governing voluntary religious expression in public schools as provided by Section 25.156, the district is in compliance with the provisions of this subchapter covered by the model policy.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.156. MODEL POLICY GOVERNING VOLUNTARY RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS. In this section, "model policy" means a local policy adopted by the school district that is substantially identical to the following:


ARTICLE I



STUDENT EXPRESSION OF RELIGIOUS VIEWPOINTS



The school district shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


ARTICLE II



STUDENT SPEAKERS AT NONGRADUATION EVENTS



The school district hereby creates a limited public forum for student speakers at all school events at which a student is to publicly speak. For each speaker, the district shall set a maximum time limit reasonable and appropriate to the occasion. Student speakers shall introduce:


(1) football games;


(2) any other athletic events designated by the district;


(3) opening announcements and greetings for the school day; and


(4) any additional events designated by the district, which may include, without limitation, assemblies and pep rallies.


The forum shall be limited in the manner provided by this article.


Only those students in the highest two grade levels of the school and who hold one of the following positions of honor based on neutral criteria are eligible to use the limited public forum: student council officers, class officers of the highest grade level in the school, captains of the football team, and other students holding positions of honor as the school district may designate.


An eligible student shall be notified of the student's eligibility, and a student who wishes to participate as an introducing speaker shall submit the student's name to the student council or other designated body during an announced period of not less than three days. The announced period may be at the beginning of the school year, at the end of the preceding school year so student speakers are in place for the new year, or, if the selection process will be repeated each semester, at the beginning of each semester or at the end of the preceding semester so speakers are in place for the next semester. The names of the volunteering student speakers shall be randomly drawn until all names have been selected, and the names shall be listed in the order drawn. Each selected student will be matched chronologically to the event for which the student will be giving the introduction. Each student may speak for one week at a time for all introductions of events that week, or rotate after each speaking event, or otherwise as determined by the district. The list of student speakers shall be chronologically repeated as needed, in the same order. The district may repeat the selection process each semester rather than once a year.


The subject of the student introductions must be related to the purpose of the event and to the purpose of marking the opening of the event, honoring the occasion, the participants, and those in attendance, bringing the audience to order, and focusing the audience on the purpose of the event. The subject must be designated, a student must stay on the subject, and the student may not engage in obscene, vulgar, offensively lewd, or indecent speech. The school district shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


For as long as there is a need to dispel confusion over the nonsponsorship of the student's speech, at each event in which a student will deliver an introduction, a disclaimer shall be stated in written or oral form, or both, such as, "The student giving the introduction for this event is a volunteering student selected on neutral criteria to introduce the event. The content of the introduction is the private expression of the student and does not reflect the endorsement, sponsorship, position, or expression of the school district."


Certain students who have attained special positions of honor in the school have traditionally addressed school audiences from time to time as a tangential component of their achieved positions of honor, such as the captains of various sports teams, student council officers, class officers, homecoming kings and queens, prom kings and queens, and the like, and have attained their positions based on neutral criteria. Nothing in this policy eliminates the continuation of the practice of having these students, irrespective of grade level, address school audiences in the normal course of their respective positions. The school district shall create a limited public forum for the speakers and shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


ARTICLE III



STUDENT SPEAKERS AT GRADUATION CEREMONIES



The school district hereby creates a limited public forum consisting of an opportunity for a student to speak to begin graduation ceremonies and another student to speak to end graduation ceremonies. For each speaker, the district shall set a maximum time limit reasonable and appropriate to the occasion.


The forum shall be limited in the manner provided by this article.


Only students who are graduating and who hold one of the following neutral criteria positions of honor shall be eligible to use the limited public forum: student council officers, class officers of the graduating class, the top three academically ranked graduates, or a shorter or longer list of student leaders as the school district may designate. A student who will otherwise have a speaking role in the graduation ceremonies is ineligible to give the opening and closing remarks. The names of the eligible volunteering students will be randomly drawn. The first name drawn will give the opening and the second name drawn will give the closing.


The topic of the opening and closing remarks must be related to the purpose of the graduation ceremony and to the purpose of marking the opening and closing of the event, honoring the occasion, the participants, and those in attendance, bringing the audience to order, and focusing the audience on the purpose of the event.


In addition to the students giving the opening and closing remarks, certain other students who have attained special positions of honor based on neutral criteria, including, without limitation, the valedictorian, will have speaking roles at graduation ceremonies. For each speaker, the school district shall set a maximum time limit reasonable and appropriate to the occasion and to the position held by the speaker. For this purpose, the district creates a limited public forum for these students to deliver the addresses. The subject of the addresses must be related to the purpose of the graduation ceremony, marking and honoring the occasion, honoring the participants and those in attendance, and the student's perspective on purpose, achievement, life, school, graduation, and looking forward to the future.


The subject must be designated for each student speaker, the student must stay on the subject, and the student may not engage in obscene, vulgar, offensively lewd, or indecent speech. The school district shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


A written disclaimer shall be printed in the graduation program that states, "The students who will be speaking at the graduation ceremony were selected based on neutral criteria to deliver messages of the students' own choices. The content of each student speaker's message is the private expression of the individual student and does not reflect any position or expression of the school district or the board of trustees, or the district's administration, or employees of the district, or the views of any other graduate. The contents of these messages were prepared by the student volunteers, and the district refrained from any interaction with student speakers regarding the student speakers' viewpoints on permissible subjects."


ARTICLE IV



RELIGIOUS EXPRESSION IN CLASS ASSIGNMENTS



Students may express the students' beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of the students' submission. Homework and classroom work shall be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school. Students may not be penalized or rewarded on account of religious content. If a teacher's assignment involves writing a poem, the work of a student who submits a poem in the form of a prayer (for example, a psalm) should be judged on the basis of academic standards, including literary quality, and not penalized or rewarded on account of its religious content.


ARTICLE V



FREEDOM TO ORGANIZE RELIGIOUS GROUPS AND ACTIVITIES



Students may organize prayer groups, religious clubs, "see you at the pole" gatherings, and other religious gatherings before, during, and after school to the same extent that students are permitted to organize other noncurricular student activities and groups. Religious groups must be given the same access to school facilities for assembling as is given to other noncurricular groups, without discrimination based on the religious content of the group's expression. If student groups that meet for nonreligious activities are permitted to advertise or announce the groups' meetings, for example, by advertising in a student newspaper, putting up posters, making announcements on a student activities bulletin board or public address system, or handing out leaflets, school authorities may not discriminate against groups that meet for prayer or other religious speech. School authorities may disclaim sponsorship of noncurricular groups and events, provided they administer the disclaimer in a manner that does not favor or disfavor groups that meet to engage in prayer or other religious speech.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


SUBCHAPTER Z. MISCELLANEOUS PROVISIONS RELATING TO STUDENTS



Sec. 25.901. EXERCISE OF CONSTITUTIONAL RIGHT TO PRAY. A public school student has an absolute right to individually, voluntarily, and silently pray or meditate in school in a manner that does not disrupt the instructional or other activities of the school. A person may not require, encourage, or coerce a student to engage in or refrain from such prayer or meditation during any school activity.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.904. USE OF CALCULATOR APPLICATION IN PLACE OF GRAPHING CALCULATOR. (a) A school district shall permit a student enrolled in a course that requires the student to use a graphing calculator to use a calculator application on a computing device, including a personal, laptop, or tablet computer, that provides the same functionality, unless the district makes available to the student a graphing calculator at no cost to the student.


(b) A school district may adopt policies related to student use of a computing device under this section.


(c) To the extent this section conflicts with Section 37.082, this section prevails.


Added by Acts 2019, 86th Leg., R.S., Ch. 1315 (H.B. 3906), Sec. 7, eff. June 14, 2019.

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EDUCATION CODE CHAPTER 25. ADMISSION, TRANSFER, AND ATTENDANCE

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EDUCATION CODE TITLE 2. PUBLIC EDUCATION SUBTITLE E. STUDENTS AND PARENTS CHAPTER 25. ADMISSION, TRANSFER, AND ATTENDANCE SUBCHAPTER A. ADMISSION AND ENROLLMENT Sec. 25.001. ADMISSION.

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A.10 Marginalized Populations:
"Advocate for the equitable right and access to free,
appropriate public education for all youth in which students
are not stigmatized or isolated based on race, gender identity, gender expression, sexual orientation, language, immigration status, juvenile justice/court involvement, housing, socioeconomic status, ability, foster care, transportation, special education, mental health and/or any other exceptionality or special need" (ASCA Ethical Standards for School Counselors, 2016, p. 5).

ASCA Ethical Standards for School Counselors (2016). American School Counselor Association. https://www.schoolcounselor.org/getmedia/f041cbd0-7004-47a5-ba01-3a5d657c6743/Ethical-Standards.pdf

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Marginalized populations of students seldom have advocates to support their educational needs.  Many of these young students do not receive messages of hope through hard work from anyone (Nerenburg, 2019). It is our job as educators to be the voice for all students. “A positive PK-12 education experience has the potential to be a powerful counterweight to the abuse, neglect, separation, impermanence and other barriers these vulnerable students experience” (Students in Foster Care, 2016). It is imperative for school counselors to build relationship with students in the foster care system, so they feel inclusive.

Nerenberg, J. (2019). Why marginalized students need hope to succeed, Greater Good Magazine. https://greatergood.berkeley.edu/article/item/why_marginalized_students_need_hope_to_succeed

Students in Foster Care (2016). U.S. Department of Education. https://www2.ed.gov/about/inits/ed/foster-care/index.html

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I decided to interview my colleague Tanya Campos at Democracy Prep Public Schools that has worked with students in marginalized populations. Tanya has been an elementary school teacher for three years and she has also taught at the post-secondary level as a college professor. Ms. Campos is currently the bilingual first grade teacher at Democracy Prep Public Schools at the Stewart Campus.

My topic about working with students in foster care is important to Ms. Campos because she has taught several students in the foster care system. “Students in foster care should be treated with extra love and compassion” (T. Campos, personal communication, July 20, 2022). Ms. Campos recently had a student in her classroom that was in the process of being removed from their family. The student’s behavior changed and they started to exhibit signs of wanting attention by disrupting the learning environment (T. Campos, personal communication, July 20, 2022). Ms. Campos did not give up on the student, but in fact immediately contacted the school counselor to create an action plan for the student.

Three best practices that helped improve the student’s behavior were:

1. Building a positive relationship with the student.

Ms. Campos held weekly lunch bunches with the student to get to know the student on a personal level.

2. Social and emotional lessons.

The school counselor taught self-regulation lessons to the student weekly.

3. Creating a safe learning environment.

Ms. Campos ensured she followed the same schedule daily; making her classroom a structured environment.

During the interview, I informed Ms. Campos of the increased number of children in the foster care system in Texas. Ms. Campos stated, “It is very disheartening to hear those statistics, but as educators we can assist students by establishing a positive classroom culture by making all students feel welcomed and loved” (T. Campos, personal communication, July 20, 2022). Overall, as educators we have to be understanding of students’ situations in foster care by being flexible and an advocate for them.

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THRU Project | Resources for Foster Youth

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THRU Project bridges the gap between foster care and adulthood for youth who age out of the foster care system.
​
Exiting foster care alone at age 18 can be overwhelming. The statistics show increased rates of homelessness, unplanned pregnancy, and incarceration amongst foster alumni.
​
THRU Project provides foster youth, ages 14 and up, with a volunteer mentor, free bus passes & cell phones, crucial life skills training, and affordable & stable housing.

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THRU Project | Resources for San Antonio Area Foster Youth

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THRU Project bridges the gap between foster care and adulthood for youth who age out of the foster care system. ​ Exiting foster care alone at age 18 can be overwhelming. The statistics show increased rates of homelessness, unplanned pregnancy, and incarceration amongst foster alumni.

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OUR MISSION

JOVEN's mission is to develop character and resiliency in children by providing them with innovative and exciting programs, as well as structured alternative activities, that are designed to help them to succeed.

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OUR MISSION JOVEN's mission is to develop character and resiliency in children by providing them with innovative and exciting programs, as well as structured alternative activities, that are designed to help them to succeed.

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EVERY CHILD

Learn more about the vulnerable child population in our community.
UNDERSTAND THE NEED

8,000+ South Texas children are confirmed victims of abuse and neglect.
4,600+ South Texas children languish in foster care every year.
1,000+ families are needed to serve these children.

Together our community can be More than Enough for children and families in crisis.

WORKING TOGETHER

Learn more about collaboration and see examples of how the alliance is helping synergize orphan care.
SEE THE IMPACT WE'RE MAKING

Our successful collaboration with South Texas Alliance for Orphans, over the past two years, has allowed foster parents and foster youth another source of support and has helped ensure a continuum of care, both of which directly impact the rates of high school completion. South Texas Alliance for Orphans has diligently worked to bring foster care organizations together to create greater impact for foster youth.

- Elaine Hartle | Executive Director, The Thru Project

The South Texas Alliance for Orphans is a 501c3 organization.

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EVERY CHILD Learn more about the vulnerable child population in our community. UNDERSTAND THE NEED 8,000+ South Texas children are confirmed victims of abuse and neglect. 4,600+ South Texas children languish in foster care every year. 1,000+ families are needed to serve these children.

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About Us

BCFS Health and Human Services-San Antonio helps youth reach their full potential by providing services that promote healthy development including workforce assistance, dropout prevention activities, self-esteem and leadership activities, counseling and more. BCFS Health and Human Services-San Antonio parenting education programs also help families create safe, loving home environments.

Youth receiving services are:

Between the ages of 16 and 25

Currently in foster care, or aging out of foster care

Formerly in foster care but still need assistance

Foster youth on probation or parole, or released from juvenile correctional facilities

Tamera is a 19-year-old former foster youth who aged out of foster care in San Antonio. BCFS Health and Human Services-San Antonio helped her get into San Antonio College, get tuition assistance, register for classes and buy textbooks. They're also teaching her financial responsibility and helping her get an apartment close to campus. Tamara says, "no matter how difficult the job, BCFS Health and Human Services has helped me get it done! I love you guys!"

Youth Services

Preparation for Adult Living (PAL): Helps youth from foster care develop the necessary skills and access resources to live independently after leaving the foster care system

Texas Workforce Commission (TWC): Job searches, job referrals, career assessments, identification of growth occupations in the local labor market, job skills training and job placement

Education and Training Voucher (ETV): A scholarship program that helps youth from foster care pay for higher education and vocational training

Resiliency Through Healing (RTH): Helping those 18 to 25 years old by offering free counseling and therapy services

One-on-one individualized assistance

Assessments to identify unmet needs

Mentoring

Family Services

The Family And Youth Success (FAYS) program aims to reduce family conflict and prevent the problems of delinquent behaviors, runaway, truancy and child abuse by helping youths and their families learn to resolve crises and develop coping and parenting skills. FAYS services are free to youth and families.
Find Out More
Contact Us
BCFS Health and Human Services-San Antonio
4346 NW Loop 410 San Antonio, TX 78229
Call (210)733-7932

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BCFS Health and Human Services-San Antonio - Discover BCFS

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About Us BCFS Health and Human Services-San Antonio helps youth reach their full potential by providing services that promote healthy development including workforce assistance, dropout prevention activities, self-esteem and leadership activities, counseling and more. BCFS Health and Human Services-San Antonio parenting education programs also help families create safe, loving home environments.

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The Every Student Succeeds Act is the main law in K-12 education in the United States.

New provisions support children in foster care.

The law requires all students to be provided with an education that will prepare them for college and the career of their choice.

Every Student Succeeds Act, 20 U.S.C. § 6301 (2015). https://www.congress.gov/114/plaws/publ95/PLAW-114publ95.pdf

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Every Student Succeeds Act (ESSA) | U.S. Department of Education