By:  Shapiro                                           S.B. No. 349

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to guardians ad litem, attorneys ad litem, and child

 1-2     volunteer advocates in certain suits affecting the parent-child

 1-3     relationship.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 107.001, Family Code, is amended to read

 1-6     as follows:

 1-7           Sec. 107.001.  APPOINTMENT OF GUARDIAN AD LITEM.  (a)  In a

 1-8     suit in which termination of the parent-child relationship is

 1-9     requested, the court or an associate judge shall appoint a guardian

1-10     ad litem to represent the interests of the child immediately after

1-11     the filing of the petition but before the full adversary hearing to

1-12     ensure adequate representation of the child, unless:

1-13                 (1)  the child is a petitioner;

1-14                 (2)  an attorney ad litem has been appointed for the

1-15     child; or

1-16                 (3)  the court or an associate judge finds that the

1-17     interests of the child will be represented adequately by a party to

1-18     the suit and are not adverse to that party.

1-19           (b)  In a suit filed by a governmental entity in which the

1-20     entity requests the termination of the parent-child relationship or

1-21     to be named conservator of a child, the court or an associate judge

1-22     shall appoint a guardian ad litem to represent the best interests

1-23     of the child immediately after the filing of the petition but

 2-1     before the full adversary hearing to ensure adequate representation

 2-2     of the child.

 2-3           (c)  In any other suit, the court or an associate judge may

 2-4     appoint a guardian ad litem.

 2-5           (d)  A guardian ad litem appointed under this section may be

 2-6     an attorney, a volunteer advocate appointed under Section 107.031,

 2-7     or another adult having the competence, training, and expertise

 2-8     determined by the court to be sufficient to represent the best

 2-9     interests of the child.

2-10           (e) [(c)]  The managing conservator may be appointed guardian

2-11     ad litem if the managing conservator:

2-12                 (1)  is not a parent of the child or a person

2-13     petitioning for adoption of the child; and

2-14                 (2)  has no personal interest in the suit.

2-15           (f) [(d)]  A guardian ad litem shall be appointed to

2-16     represent any other person entitled to service of citation under

2-17     this code if the person is incompetent or a child, unless the

2-18     person has executed an affidavit of relinquishment of parental

2-19     rights or an affidavit of waiver of interest in child containing a

2-20     waiver of service of citation.

2-21           SECTION 2.  Section 107.002, Family Code, is amended to read

2-22     as follows:

2-23           Sec. 107.002.  POWERS AND DUTIES OF GUARDIAN [ATTORNEY] AD

2-24     LITEM.  (a)  A guardian ad litem appointed under this subchapter is

2-25     not a party to the suit but may:

 3-1                 (1)  conduct an investigation to the extent that the

 3-2     guardian ad litem considers necessary to determine the best

 3-3     interest of the child for whom the guardian is appointed; and

 3-4                 (2)  obtain and review copies of the child's relevant

 3-5     medical, psychological, and school records.

 3-6           (b)  A guardian ad litem appointed under this subchapter

 3-7     shall, within a reasonable time after the appointment, interview:

 3-8                 (1)  the child, if the child is four years of age or

 3-9     older; and

3-10                 (2)  each individual that the guardian ad litem

3-11     considers likely to have significant knowledge of the child's

3-12     history and condition.

3-13           (c)  A guardian ad litem appointed under this subchapter is

3-14     not a party to the suit but is entitled to:

3-15                 (1)  receive a copy of each pleading or other paper

3-16     filed with the court in the case in which the guardian ad litem is

3-17     appointed;

3-18                 (2)  receive notice of each hearing in the case;

3-19                 (3)  participate in case staffings by an authorized

3-20     agency concerning the child;

3-21                 (4)  attend all legal proceedings in the case but may

3-22     not call or question a witness unless the ad litem is a licensed

3-23     attorney;

3-24                 (5)  review and sign or decline to sign any agreed

3-25     order affecting the child; and

 4-1                 (6)  testify in court, except as provided by Subsection

 4-2     (d), regarding the recommendations concerning the actions that the

 4-3     guardian ad litem considers to be in the best interest of the

 4-4     child, including giving reasons for the guardian ad litem's

 4-5     opposition if the guardian ad litem does not agree to the terms of

 4-6     a proposed order.

 4-7           (d)  An attorney who is appointed as attorney ad litem and

 4-8     guardian ad litem for a child may not testify under Subsection

 4-9     (c)(6).

4-10           (e)  An attorney who is appointed as attorney ad litem and

4-11     guardian ad litem for a child shall:

4-12                 (1)  become familiar with the American Bar

4-13     Association's standards of practice for lawyers who represent

4-14     children in abuse and neglect cases; and

4-15                 (2)  comply with the requirements of the Texas

4-16     Disciplinary Rules of Professional Conduct.

4-17           (f)  An attorney who is appointed as attorney ad litem and

4-18     guardian ad litem for a child and who determines that a conflict

4-19     exists by performing both roles shall:

4-20                 (1)  withdraw as the child's guardian ad litem;

4-21                 (2)  continue to serve as the child's attorney ad

4-22     litem; and

4-23                 (3)  request appointment of a new guardian ad litem for

4-24     the child without revealing the reason a new appointment is

4-25     required.

 5-1           [(e)  A court is not required under this section to appoint

 5-2     an attorney ad litem in a proceeding in which:]

 5-3                 [(1)  a suit for the dissolution of a marriage is

 5-4     uncontested; or]

 5-5                 [(2)  the issues of possession of and access to a child

 5-6     are agreed to by both parents.]

 5-7           SECTION 3.  Subchapter A, Chapter 107, Family Code, is

 5-8     amended by adding Section 107.003 to read as follows:

 5-9           Sec. 107.003.  IMMUNITY.  (a)  A guardian ad litem appointed

5-10     under this subchapter is not liable for civil damages arising from

5-11     a recommendation made or an opinion given in the capacity of

5-12     guardian ad litem.

5-13           (b)  Subsection (a) does not apply to a recommendation or

5-14     opinion that is:

5-15                 (1)  wilfully wrongful;

5-16                 (2)  given with conscious indifference or reckless

5-17     disregard to the safety of another;

5-18                 (3)  given in bad faith or with malice; or

5-19                 (4)  grossly negligent.

5-20           SECTION 4.  Subsections (a) and (c), Section 107.006, Family

5-21     Code, are amended to read as follows:

5-22           (a)  The local administrative district judge in each county

5-23     in a Department of Protective and Regulatory Services region for

5-24     child protective services that contains a county having a

5-25     population of 2.8 million or more shall establish a pool from which

 6-1     guardians ad litem and attorneys ad litem are appointed for

 6-2     proceedings in the district courts of the county.  A local

 6-3     administrative district judge in any other county may establish a

 6-4     pool from which guardians ad litem and attorneys ad litem are

 6-5     appointed for proceedings in the district courts of that county.

 6-6     To be eligible for a pool established under this subsection, a

 6-7     person must:

 6-8                 (1)  complete training approved [provided] by the State

 6-9     Bar of Texas in family law and the responsibilities of ad litems;

6-10                 (2)  complete as part of the person's annual continuing

6-11     legal education requirement not fewer than three hours in family

6-12     law issues; and

6-13                 (3)  meet other requirements established by the local

6-14     administrative district judge.

6-15           (c)  A party to a proceeding in which a person is appointed

6-16     as a guardian ad litem or an attorney ad litem may object to

6-17     appointment of the person at any time before the date of the trial

6-18     of the proceeding.  A party may object under this subsection by

6-19     filing a written motion stating [on] the grounds and facts on which

6-20     [that] the party believes that the person appointed lacks

6-21     objectivity or is failing to fulfill the person's responsibilities

6-22     as an ad litem as outlined in the written statement of ad litem

6-23     responsibilities.  The court shall promptly rule on an objection

6-24     raised under this subsection and shall order the removal of the

6-25     guardian ad litem or attorney ad litem if the court finds that the

 7-1     objection is justifiable [reasonable].

 7-2           SECTION 5.  Subchapter B, Chapter 107, Family Code, is

 7-3     amended by adding Section 107.0135 to read as follows:

 7-4           Sec. 107.0135.  APPOINTMENT OF ATTORNEY AD LITEM NOT

 7-5     REQUIRED; CERTAIN CASES.  A court is not required under this

 7-6     section to appoint an attorney ad litem in a proceeding in which:

 7-7                 (1)  a suit for the dissolution of a marriage is

 7-8     uncontested; or

 7-9                 (2)  the issues of possession of and access to a child

7-10     are agreed to by both parents.

7-11           SECTION 6.  Section 107.031, Family Code, is amended by

7-12     adding Subsection (d) to read as follows:

7-13           (d)  This section does not prohibit the court from appointing

7-14     as a guardian ad litem for a child under Section 107.001 a

7-15     court-certified volunteer advocate appointed for the child under

7-16     this section.

7-17           SECTION 7.  Section 264.602, Family Code, is amended by

7-18     adding Subsection (d) to read as follows:

7-19           (d)  The attorney general by rule shall adopt standards for a

7-20     local volunteer advocate program.  The statewide organization shall

7-21     assist the attorney general in developing the standards.

7-22           SECTION 8.  Subsection (a), Section 264.604, Family Code, is

7-23     amended to read as follows:

7-24           (a)  A person is eligible for a contract under Section

7-25     264.602 only if the person is a public or private nonprofit entity

 8-1     that operates a volunteer advocate program that:

 8-2                 (1)  uses individuals appointed as volunteer advocates

 8-3     or guardians ad litem by the court to provide for the needs of

 8-4     abused or neglected children;

 8-5                 (2)  has provided court-appointed advocacy services for

 8-6     at least two years;

 8-7                 (3)  provides court-appointed advocacy services for at

 8-8     least 10 children each month; and

 8-9                 (4)  has demonstrated that the program has local

8-10     judicial support.

8-11           SECTION 9.  Subsection (a), Section 264.607, Family Code, is

8-12     amended to read as follows:

8-13           (a)  The attorney general shall require that a contract under

8-14     Section 264.602 require the volunteer advocate program to:

8-15                 (1)  make quarterly and annual financial reports on a

8-16     form provided by the attorney general;

8-17                 (2)  cooperate with inspections and audits that the

8-18     attorney general makes to ensure service standards and fiscal

8-19     responsibility; and

8-20                 (3)  provide as a minimum:

8-21                       (A)  independent and factual information to the

8-22     court regarding the child;

8-23                       (B)  advocacy through the courts for permanent

8-24     home placement and rehabilitation services for the child;

8-25                       (C)  monitoring of the child to ensure the safety

 9-1     of the child and to prevent unnecessary movement of the child to

 9-2     multiple temporary placements;

 9-3                       (D)  reports to the presiding judge and to

 9-4     counsel for the parties involved;

 9-5                       (E)  community education relating to child abuse

 9-6     and neglect;

 9-7                       (F)  referral services to existing community

 9-8     services;

 9-9                       (G)  a volunteer recruitment and training

9-10     program, including adequate screening procedures for volunteers;

9-11     [and]

9-12                       (H)  procedures to assure the confidentiality of

9-13     records or information relating to the child; and

9-14                       (I)  compliance with the standards adopted under

9-15     Section 264.602.

9-16           SECTION 10.  This Act takes effect September 1, 1997, and

9-17     applies to a suit affecting the parent-child relationship pending

9-18     on that date or filed on or after that date.

9-19           SECTION 11.  The importance of this legislation and the

9-20     crowded condition of the calendars in both houses create an

9-21     emergency and an imperative public necessity that the

9-22     constitutional rule requiring bills to be read on three several

9-23     days in each house be suspended, and this rule is hereby suspended.