By Shapiro                                       S.B. No. 349

      75R4173 JMM-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to guardians ad litem and child volunteer advocates in

 1-3     certain suits affecting the parent-child 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

1-24     before the full adversary hearing to ensure adequate representation

 2-1     of the child.

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

 2-3     appoint a guardian ad litem.

 2-4           (d)  A guardian ad litem appointed under this section may be

 2-5     an attorney, a volunteer advocate appointed under Section 107.031,

 2-6     or another adult having the competence, training, and expertise

 2-7     determined by the court to be sufficient to represent the best

 2-8     interests of the child.

 2-9           (e) [(c)]  The managing conservator may be appointed guardian

2-10     ad litem if the managing conservator:

2-11                 (1)  is not a parent of the child or a person

2-12     petitioning for adoption of the child; and

2-13                 (2)  has no personal interest in the suit.

2-14           (f) [(d)]  A guardian ad litem shall be appointed to

2-15     represent any other person entitled to service of citation under

2-16     this code if the person is incompetent or a child, unless the

2-17     person has executed an affidavit of relinquishment of parental

2-18     rights or an affidavit of waiver of interest in child containing a

2-19     waiver of service of citation.

2-20           SECTION 2.  Section 107.002, Family Code, is amended to read

2-21     as follows:

2-22           Sec. 107.002.  POWERS AND DUTIES OF GUARDIAN [ATTORNEY] AD

2-23     LITEM.  (a)  A guardian ad litem appointed under this subchapter

2-24     may:

2-25                 (1)  conduct an investigation to the extent that the

2-26     guardian ad litem considers necessary to determine the best

2-27     interest of the child for whom the guardian is appointed; and

 3-1                 (2)  obtain and review copies of the child's relevant

 3-2     medical, psychological, and school records.

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

 3-4     shall, within a reasonable time after the appointment, interview:

 3-5                 (1)  the child, if the child is four years of age or

 3-6     older; and

 3-7                 (2)  each individual that the guardian ad litem

 3-8     considers likely to have significant knowledge of the child's

 3-9     history and condition.

3-10           (c)  A guardian ad litem appointed under this subchapter is

3-11     entitled to:

3-12                 (1)  receive a copy of each pleading or other paper

3-13     filed with the court in the case in which the guardian ad litem is

3-14     appointed;

3-15                 (2)  receive notice of each hearing in the case;

3-16                 (3)  participate in case staffings by an authorized

3-17     agency concerning the child;

3-18                 (4)  attend all legal proceedings in the case;

3-19                 (5)  be a party to any agreed order affecting the

3-20     child; and

3-21                 (6)  testify in court on the guardian ad litem's

3-22     recommendations concerning the actions that the guardian ad litem

3-23     considers to be in the best interest of the child, including giving

3-24     reasons that the guardian ad litem does not consent to the terms of

3-25     a proposed agreed order.

3-26           [(e)  A court is not required under this section to appoint

3-27     an attorney ad litem in a proceeding in which:]

 4-1                 [(1)  a suit for the dissolution of a marriage is

 4-2     uncontested; or]

 4-3                 [(2)  the issues of possession of and access to a child

 4-4     are agreed to by both parents.]

 4-5           SECTION 3.  Subchapter A, Chapter 107, Family Code, is

 4-6     amended by adding Section 107.003 to read as follows:

 4-7           Sec. 107.003.  IMMUNITY.  (a)  A guardian ad litem appointed

 4-8     under this subchapter is not liable for civil damages arising from

 4-9     a recommendation made or an opinion given in the capacity as the

4-10     guardian ad litem.

4-11           (b)  Subsection (a) does not apply to a recommendation or

4-12     opinion that is:

4-13                 (1)  wilfully wrongful;

4-14                 (2)  given with conscious indifference or reckless

4-15     disregard to the safety of another;

4-16                 (3)  given in bad faith or with malice; or

4-17                 (4)  grossly negligent.

4-18           SECTION 4.  Subchapter B, Chapter 107, Family Code, is

4-19     amended by adding Section 107.0135 to read as follows:

4-20           Sec. 107.0135.  APPOINTMENT OF ATTORNEY AD LITEM NOT

4-21     REQUIRED; CERTAIN CASES.  A court is not required under this

4-22     section to appoint an attorney ad litem in a proceeding in which:

4-23                 (1)  a suit for the dissolution of a marriage is

4-24     uncontested; or

4-25                 (2)  the issues of possession of and access to a child

4-26     are agreed to by both parents.

4-27           SECTION 5.  Section 107.031, Family Code, is amended by

 5-1     adding Subsection (d) to read as follows:

 5-2           (d)  This section does not prohibit the court from appointing

 5-3     as a guardian ad litem for a child under Section 107.001 a

 5-4     court-certified volunteer advocate appointed for the child under

 5-5     this section.

 5-6           SECTION 6.  Section 264.602, Family Code, is amended by

 5-7     adding Subsection (d) to read as follows:

 5-8           (d)  The attorney general by rule shall adopt standards for a

 5-9     local volunteer advocate program.  The statewide organization shall

5-10     assist the attorney general in developing the standards.

5-11           SECTION 7.  Section 264.604(a), Family Code, is amended to

5-12     read as follows:

5-13           (a)  A person is eligible for a contract under Section

5-14     264.602 only if the person is a public or private nonprofit entity

5-15     that operates a volunteer advocate program that:

5-16                 (1)  uses individuals appointed as volunteer advocates

5-17     or guardians ad litem by the court to provide for the needs of

5-18     abused or neglected children;

5-19                 (2)  has provided court-appointed advocacy services for

5-20     at least two years;

5-21                 (3)  provides court-appointed advocacy services for at

5-22     least 10 children each month; and

5-23                 (4)  has demonstrated that the program has local

5-24     judicial support.

5-25           SECTION 8.  Section 264.607(a), Family Code, is amended to

5-26     read as follows:

5-27           (a)  The attorney general shall require that a contract under

 6-1     Section 264.602 require the volunteer advocate program to:

 6-2                 (1)  make quarterly and annual financial reports on a

 6-3     form provided by the attorney general;

 6-4                 (2)  cooperate with inspections and audits that the

 6-5     attorney general makes to ensure service standards and fiscal

 6-6     responsibility; and

 6-7                 (3)  provide as a minimum:

 6-8                       (A)  independent and factual information to the

 6-9     court regarding the child;

6-10                       (B)  advocacy through the courts for permanent

6-11     home placement and rehabilitation services for the child;

6-12                       (C)  monitoring of the child to ensure the safety

6-13     of the child and to prevent unnecessary movement of the child to

6-14     multiple temporary placements;

6-15                       (D)  reports to the presiding judge and to

6-16     counsel for the parties involved;

6-17                       (E)  community education relating to child abuse

6-18     and neglect;

6-19                       (F)  referral services to existing community

6-20     services;

6-21                       (G)  a volunteer recruitment and training

6-22     program, including adequate screening procedures for volunteers;

6-23     [and]

6-24                       (H)  procedures to assure the confidentiality of

6-25     records or information relating to the child; and

6-26                       (I)  compliance with the standards adopted under

6-27     Section 264.602.

 7-1           SECTION 9.  This Act takes effect September 1, 1997, and

 7-2     applies to a suit affecting the parent-child relationship pending

 7-3     on that date or filed on or after that date.

 7-4           SECTION 10.  The importance of this legislation and the

 7-5     crowded condition of the calendars in both houses create an

 7-6     emergency and an imperative public necessity that the

 7-7     constitutional rule requiring bills to be read on three several

 7-8     days in each house be suspended, and this rule is hereby suspended.