1-1 By: Shapiro S.B. No. 349
1-2 (In the Senate - Filed January 29, 1997; February 3, 1997,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 March 11, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0; March 11, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 349 By: Ellis
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to guardians ad litem, attorneys ad litem, and child
1-11 volunteer advocates in certain suits affecting the parent-child
1-12 relationship.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Section 107.001, Family Code, is amended to read
1-15 as follows:
1-16 Sec. 107.001. APPOINTMENT OF GUARDIAN AD LITEM. (a) In a
1-17 suit in which termination of the parent-child relationship is
1-18 requested, the court or an associate judge shall appoint a guardian
1-19 ad litem to represent the interests of the child immediately after
1-20 the filing of the petition but before the full adversary hearing to
1-21 ensure adequate representation of the child, unless:
1-22 (1) the child is a petitioner;
1-23 (2) an attorney ad litem has been appointed for the
1-24 child; or
1-25 (3) the court or an associate judge finds that the
1-26 interests of the child will be represented adequately by a party to
1-27 the suit and are not adverse to that party.
1-28 (b) In a suit filed by a governmental entity in which the
1-29 entity requests the termination of the parent-child relationship or
1-30 to be named conservator of a child, the court or an associate judge
1-31 shall appoint a guardian ad litem to represent the best interests
1-32 of the child immediately after the filing of the petition but
1-33 before the full adversary hearing to ensure adequate representation
1-34 of the child.
1-35 (c) In any other suit, the court or an associate judge may
1-36 appoint a guardian ad litem.
1-37 (d) A guardian ad litem appointed under this section may be
1-38 an attorney, a volunteer advocate appointed under Section 107.031,
1-39 or another adult having the competence, training, and expertise
1-40 determined by the court to be sufficient to represent the best
1-41 interests of the child.
1-42 (e) [(c)] The managing conservator may be appointed guardian
1-43 ad litem if the managing conservator:
1-44 (1) is not a parent of the child or a person
1-45 petitioning for adoption of the child; and
1-46 (2) has no personal interest in the suit.
1-47 (f) [(d)] A guardian ad litem shall be appointed to
1-48 represent any other person entitled to service of citation under
1-49 this code if the person is incompetent or a child, unless the
1-50 person has executed an affidavit of relinquishment of parental
1-51 rights or an affidavit of waiver of interest in child containing a
1-52 waiver of service of citation.
1-53 SECTION 2. Section 107.002, Family Code, is amended to read
1-54 as follows:
1-55 Sec. 107.002. POWERS AND DUTIES OF GUARDIAN [ATTORNEY] AD
1-56 LITEM. (a) A guardian ad litem appointed under this subchapter is
1-57 not a party to the suit but may:
1-58 (1) conduct an investigation to the extent that the
1-59 guardian ad litem considers necessary to determine the best
1-60 interest of the child for whom the guardian is appointed; and
1-61 (2) obtain and review copies of the child's relevant
1-62 medical, psychological, and school records.
1-63 (b) A guardian ad litem appointed under this subchapter
1-64 shall, within a reasonable time after the appointment, interview:
2-1 (1) the child, if the child is four years of age or
2-2 older; and
2-3 (2) each individual that the guardian ad litem
2-4 considers likely to have significant knowledge of the child's
2-5 history and condition.
2-6 (c) A guardian ad litem appointed under this subchapter is
2-7 not a party to the suit but is entitled to:
2-8 (1) receive a copy of each pleading or other paper
2-9 filed with the court in the case in which the guardian ad litem is
2-10 appointed;
2-11 (2) receive notice of each hearing in the case;
2-12 (3) participate in case staffings by an authorized
2-13 agency concerning the child;
2-14 (4) attend all legal proceedings in the case but may
2-15 not call or question a witness unless the ad litem is a licensed
2-16 attorney;
2-17 (5) review and sign or decline to sign any agreed
2-18 order affecting the child; and
2-19 (6) testify in court, except as provided by Subsection
2-20 (d), regarding the recommendations concerning the actions that the
2-21 guardian ad litem considers to be in the best interest of the
2-22 child, including giving reasons for the guardian ad litem's
2-23 opposition if the guardian ad litem does not agree to the terms of
2-24 a proposed order.
2-25 (d) An attorney who is appointed as attorney ad litem and
2-26 guardian ad litem for a child may not testify under Subsection
2-27 (c)(6).
2-28 (e) An attorney who is appointed as attorney ad litem and
2-29 guardian ad litem for a child shall:
2-30 (1) become familiar with the American Bar
2-31 Association's standards of practice for lawyers who represent
2-32 children in abuse and neglect cases; and
2-33 (2) comply with the requirements of the Texas
2-34 Disciplinary Rules of Professional Conduct.
2-35 (f) An attorney who is appointed as attorney ad litem and
2-36 guardian ad litem for a child and who determines that a conflict
2-37 exists by performing both roles shall:
2-38 (1) withdraw as the child's guardian ad litem;
2-39 (2) continue to serve as the child's attorney ad
2-40 litem; and
2-41 (3) request appointment of a new guardian ad litem for
2-42 the child without revealing the reason a new appointment is
2-43 required.
2-44 [(e) A court is not required under this section to appoint
2-45 an attorney ad litem in a proceeding in which:]
2-46 [(1) a suit for the dissolution of a marriage is
2-47 uncontested; or]
2-48 [(2) the issues of possession of and access to a child
2-49 are agreed to by both parents.]
2-50 SECTION 3. Subchapter A, Chapter 107, Family Code, is
2-51 amended by adding Section 107.003 to read as follows:
2-52 Sec. 107.003. IMMUNITY. (a) A guardian ad litem appointed
2-53 under this subchapter is not liable for civil damages arising from
2-54 a recommendation made or an opinion given in the capacity of
2-55 guardian ad litem.
2-56 (b) Subsection (a) does not apply to a recommendation or
2-57 opinion that is:
2-58 (1) wilfully wrongful;
2-59 (2) given with conscious indifference or reckless
2-60 disregard to the safety of another;
2-61 (3) given in bad faith or with malice; or
2-62 (4) grossly negligent.
2-63 SECTION 4. Subsections (a) and (c), Section 107.006, Family
2-64 Code, are amended to read as follows:
2-65 (a) The local administrative district judge in each county
2-66 in a Department of Protective and Regulatory Services region for
2-67 child protective services that contains a county having a
2-68 population of 2.8 million or more shall establish a pool from which
2-69 guardians ad litem and attorneys ad litem are appointed for
3-1 proceedings in the district courts of the county. A local
3-2 administrative district judge in any other county may establish a
3-3 pool from which guardians ad litem and attorneys ad litem are
3-4 appointed for proceedings in the district courts of that county.
3-5 To be eligible for a pool established under this subsection, a
3-6 person must:
3-7 (1) complete training approved [provided] by the State
3-8 Bar of Texas in family law and the responsibilities of ad litems;
3-9 (2) complete as part of the person's annual continuing
3-10 legal education requirement not fewer than three hours in family
3-11 law issues; and
3-12 (3) meet other requirements established by the local
3-13 administrative district judge.
3-14 (c) A party to a proceeding in which a person is appointed
3-15 as a guardian ad litem or an attorney ad litem may object to
3-16 appointment of the person at any time before the date of the trial
3-17 of the proceeding. A party may object under this subsection by
3-18 filing a written motion stating [on] the grounds and facts on which
3-19 [that] the party believes that the person appointed lacks
3-20 objectivity or is failing to fulfill the person's responsibilities
3-21 as an ad litem as outlined in the written statement of ad litem
3-22 responsibilities. The court shall promptly rule on an objection
3-23 raised under this subsection and shall order the removal of the
3-24 guardian ad litem or attorney ad litem if the court finds that the
3-25 objection is justifiable [reasonable].
3-26 SECTION 5. Subchapter B, Chapter 107, Family Code, is
3-27 amended by adding Section 107.0135 to read as follows:
3-28 Sec. 107.0135. APPOINTMENT OF ATTORNEY AD LITEM NOT
3-29 REQUIRED; CERTAIN CASES. A court is not required under this
3-30 section to appoint an attorney ad litem in a proceeding in which:
3-31 (1) a suit for the dissolution of a marriage is
3-32 uncontested; or
3-33 (2) the issues of possession of and access to a child
3-34 are agreed to by both parents.
3-35 SECTION 6. Section 107.031, Family Code, is amended by
3-36 adding Subsection (d) to read as follows:
3-37 (d) This section does not prohibit the court from appointing
3-38 as a guardian ad litem for a child under Section 107.001 a
3-39 court-certified volunteer advocate appointed for the child under
3-40 this section.
3-41 SECTION 7. Section 264.602, Family Code, is amended by
3-42 adding Subsection (d) to read as follows:
3-43 (d) The attorney general by rule shall adopt standards for a
3-44 local volunteer advocate program. The statewide organization shall
3-45 assist the attorney general in developing the standards.
3-46 SECTION 8. Subsection (a), Section 264.604, Family Code, is
3-47 amended to read as follows:
3-48 (a) A person is eligible for a contract under Section
3-49 264.602 only if the person is a public or private nonprofit entity
3-50 that operates a volunteer advocate program that:
3-51 (1) uses individuals appointed as volunteer advocates
3-52 or guardians ad litem by the court to provide for the needs of
3-53 abused or neglected children;
3-54 (2) has provided court-appointed advocacy services for
3-55 at least two years;
3-56 (3) provides court-appointed advocacy services for at
3-57 least 10 children each month; and
3-58 (4) has demonstrated that the program has local
3-59 judicial support.
3-60 SECTION 9. Subsection (a), Section 264.607, Family Code, is
3-61 amended to read as follows:
3-62 (a) The attorney general shall require that a contract under
3-63 Section 264.602 require the volunteer advocate program to:
3-64 (1) make quarterly and annual financial reports on a
3-65 form provided by the attorney general;
3-66 (2) cooperate with inspections and audits that the
3-67 attorney general makes to ensure service standards and fiscal
3-68 responsibility; and
3-69 (3) provide as a minimum:
4-1 (A) independent and factual information to the
4-2 court regarding the child;
4-3 (B) advocacy through the courts for permanent
4-4 home placement and rehabilitation services for the child;
4-5 (C) monitoring of the child to ensure the safety
4-6 of the child and to prevent unnecessary movement of the child to
4-7 multiple temporary placements;
4-8 (D) reports to the presiding judge and to
4-9 counsel for the parties involved;
4-10 (E) community education relating to child abuse
4-11 and neglect;
4-12 (F) referral services to existing community
4-13 services;
4-14 (G) a volunteer recruitment and training
4-15 program, including adequate screening procedures for volunteers;
4-16 [and]
4-17 (H) procedures to assure the confidentiality of
4-18 records or information relating to the child; and
4-19 (I) compliance with the standards adopted under
4-20 Section 264.602.
4-21 SECTION 10. This Act takes effect September 1, 1997, and
4-22 applies to a suit affecting the parent-child relationship pending
4-23 on that date or filed on or after that date.
4-24 SECTION 11. The importance of this legislation and the
4-25 crowded condition of the calendars in both houses create an
4-26 emergency and an imperative public necessity that the
4-27 constitutional rule requiring bills to be read on three several
4-28 days in each house be suspended, and this rule is hereby suspended.
4-29 * * * * *