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.