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.