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A BILL TO BE ENTITLED
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AN ACT
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relating to the duties of court-appointed guardians ad litem, |
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attorneys ad litem, and amicus attorneys in certain suits affecting |
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the parent-child relationship. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 107.002(b), (b-1), and (i), Family |
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Code, are amended to read as follows: |
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(b) A guardian ad litem appointed for the child under this |
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chapter shall: |
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(1) not later than the seventh business day [within a |
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reasonable time] after the date of the appointment, interview: |
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(A) the child in a developmentally appropriate |
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manner, if the child is three [four] years of age or older; |
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(B) the child's caregiver or the administrator of |
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the licensed child-placing agency that placed the child [each |
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person who has significant knowledge of the child's history and |
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condition, including educators, child welfare service providers, |
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and any foster parent of the child]; and |
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(C) the parties to the suit; |
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(2) not later than the 15th business day after the date |
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of the appointment, interview each person who has significant |
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knowledge of the child's history and condition, including |
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educators, child welfare service providers, and any foster parent |
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of the child; |
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(3) seek to elicit in a developmentally appropriate |
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manner the child's expressed objectives; |
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(4) [(3)] consider the child's expressed objectives |
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without being bound by those objectives; |
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(5) [(4)] encourage settlement and the use of |
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alternative forms of dispute resolution; and |
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(6) [(5)] perform any specific task directed by the |
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court. |
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(b-1) In addition to the duties required by Subsection (b), |
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a guardian ad litem appointed for a child in a proceeding under |
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Chapter 262 or 263 shall: |
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(1) review the medical care provided to the child; |
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(2) in a developmentally appropriate manner, seek to |
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elicit the child's opinion on the medical care provided; |
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(3) for a child at least 17 [16] years of age, |
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ascertain whether the child has received the following documents: |
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(A) a certified copy of the child's birth |
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certificate; |
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(B) a social security card or a replacement |
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social security card; |
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(C) a driver's license or personal |
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identification certificate under Chapter 521, Transportation Code; |
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and |
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(D) any other personal document the Department of |
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Family and Protective Services or single source continuum |
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contractor determines appropriate; and |
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(4) for a child at least 13 years of age, ascertain |
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whether the child has received a personal identification |
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certificate under Chapter 521, Transportation Code [seek to elicit |
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in a developmentally appropriate manner the name of any adult, |
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particularly an adult residing in the child's community, who could |
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be a relative or designated caregiver for the child and immediately |
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provide the names of those individuals to the Department of Family |
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and Protective Services]. |
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(i) A guardian ad litem appointed to represent a child in |
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the managing conservatorship of the Department of Family and |
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Protective Services shall, at least 72 hours before each scheduled |
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hearing under Chapter 263, determine whether the child's |
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educational needs and goals have been identified and addressed. |
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SECTION 2. Section 107.003, Family Code, is amended to read |
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as follows: |
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Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR |
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CHILD AND AMICUS ATTORNEY. (a) An attorney ad litem appointed to |
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represent a child or an amicus attorney appointed to assist the |
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court: |
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(1) shall: |
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(A) subject to Rules 4.02, 4.03, and 4.04, Texas |
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Disciplinary Rules of Professional Conduct, and not later than the |
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seventh business day [within a reasonable time] after the date of |
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the appointment, interview: |
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(i) the child in a developmentally |
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appropriate manner, if the child is three [four] years of age or |
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older; |
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(ii) the child's caregiver or the |
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administrator of the licensed child-placing agency that placed the |
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child [each person who has significant knowledge of the child's |
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history and condition, including any foster parent of the child]; |
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and |
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(iii) the parties to the suit; |
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(B) not later than the 15th business day after |
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the date of the appointment, interview each person who has |
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significant knowledge of the child's history and condition, |
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including educators, child welfare service providers, and any |
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foster parent of the child; |
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(C) seek to elicit in a developmentally |
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appropriate manner the child's expressed objectives of |
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representation; |
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(D) [(C)] consider the impact on the child in |
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formulating the attorney's presentation of the child's expressed |
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objectives of representation to the court; |
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(E) [(D)] investigate the facts of the case to |
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the extent the attorney considers appropriate; |
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(F) [(E)] obtain and review copies of relevant |
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records relating to the child as provided by Section 107.006; |
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(G) [(F)] participate in the conduct of the |
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litigation to the same extent as an attorney for a party; |
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(H) [(G)] take any action consistent with the |
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child's interests that the attorney considers necessary to expedite |
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the proceedings; |
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(I) [(H)] encourage settlement and the use of |
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alternative forms of dispute resolution; and |
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(J) [(I)] review and sign, or decline to sign, a |
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proposed or agreed order affecting the child; |
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(2) must be trained in child advocacy or have |
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experience determined by the court to be equivalent to that |
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training; and |
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(3) is entitled to: |
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(A) request clarification from the court if the |
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role of the attorney is ambiguous; |
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(B) request a hearing or trial on the merits; |
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(C) consent or refuse to consent to an interview |
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of the child by another attorney; |
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(D) receive a copy of each pleading or other |
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paper filed with the court; |
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(E) receive notice of each hearing in the suit; |
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(F) participate in any case staffing concerning |
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the child conducted by the Department of Family and Protective |
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Services or a single source continuum contractor; and |
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(G) attend all legal proceedings in the suit. |
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(b) In addition to the duties required by Subsection (a), an |
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attorney ad litem appointed for a child in a proceeding under |
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Chapter 262, 263, or 264 shall: |
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(1) review the medical care provided to the child; |
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(2) in a developmentally appropriate manner, seek to |
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elicit the child's opinion on the medical care provided; |
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(3) for a child at least 17 [16] years of age: |
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(A) advise the child of the child's right to |
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request the court to authorize the child to consent to the child's |
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own medical care under Section 266.010; and |
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(B) ascertain whether the child has received the |
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following documents: |
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(i) a certified copy of the child's birth |
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certificate; |
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(ii) a social security card or a |
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replacement social security card; |
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(iii) a driver's license or personal |
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identification certificate under Chapter 521, Transportation Code; |
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and |
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(iv) any other personal document the |
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Department of Family and Protective Services or a single source |
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continuum contractor determines appropriate; and |
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(4) for a child at least 13 years of age, ascertain |
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whether the child has received a personal identification |
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certificate under Chapter 521, Transportation Code [seek to elicit |
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in a developmentally appropriate manner the name of any adult, |
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particularly an adult residing in the child's community, who could |
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be a relative or designated caregiver for the child and immediately |
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provide the names of those individuals to the Department of Family |
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and Protective Services]. |
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SECTION 3. Sections 107.004(d-1), (d-2), and (d-3), Family |
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Code, are amended to read as follows: |
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(d-1) A meeting required by Subsection (d) must take place: |
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(1) at least 72 hours [a sufficient time] before the |
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hearing to allow the attorney ad litem to prepare for the hearing in |
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accordance with the child's expressed objectives of |
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representation; and |
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(2) in a private setting that allows for confidential |
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communications between the attorney ad litem and the child or |
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individual with whom the child ordinarily resides, as applicable. |
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(d-2) An attorney ad litem appointed to represent a child in |
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the managing conservatorship of the Department of Family and |
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Protective Services or a child who is the subject of a proceeding |
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under Chapter 264 shall, at least 72 hours before each scheduled |
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hearing under Chapter 263 or 264, determine whether the child's |
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educational needs and goals have been identified and addressed. |
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(d-3) An attorney ad litem appointed to represent a child in |
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the managing conservatorship of the Department of Family and |
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Protective Services or a child who is the subject of a proceeding |
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under Chapter 264 shall, at least once each month, [periodically |
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continue to] review the child's safety and well-being, including |
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any effects of trauma to the child, and take appropriate action, |
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including requesting a review hearing when necessary to address an |
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issue of concern. |
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SECTION 4. Section 107.008, Family Code, is amended to read |
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as follows: |
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Sec. 107.008. SUBSTITUTED JUDGMENT OF ATTORNEY FOR CHILD. |
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(a) An attorney ad litem appointed to represent a child or an |
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attorney appointed in the dual role may determine that the child |
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cannot meaningfully formulate the child's objectives of |
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representation in a case because the child has an intellectual or |
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developmental disability that causes the child to be incapable of: |
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(1) forming [lacks sufficient maturity to understand |
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and form] an attorney-client relationship with the attorney; |
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(2) making reasonable judgments [despite appropriate |
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legal counseling, continues to express objectives of |
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representation that would be seriously injurious to the child]; or |
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(3) [for any other reason is incapable of making |
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reasonable judgments and] engaging in meaningful communication. |
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(b) An attorney ad litem or an attorney appointed in the |
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dual role who determines that the child because of medical or |
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developmental reasons cannot meaningfully formulate the child's |
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expressed objectives of representation may present to the court a |
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position that the attorney determines will serve the best interests |
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of the child. |
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(c) If a guardian ad litem has been appointed for the child |
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in a suit filed by a governmental entity requesting termination of |
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the parent-child relationship or appointment of the entity as |
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conservator of the child, an attorney ad litem who determines that |
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the child cannot meaningfully formulate the child's expressed |
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objectives of representation: |
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(1) shall consult with the guardian ad litem and[, |
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without being bound by the guardian ad litem's opinion or |
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recommendation,] ensure that the guardian ad litem's opinion and |
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basis for any recommendation regarding the best interests of the |
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child are presented to the court; and |
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(2) may present to the court a position that the |
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attorney determines will serve the best interests of the child. |
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SECTION 5. Section 107.011(a), Family Code, is amended to |
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read as follows: |
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(a) Except as otherwise provided by this subchapter, in a |
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suit filed by a governmental entity seeking termination of the |
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parent-child relationship or the appointment of a conservator for a |
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child, the court shall appoint a guardian ad litem to represent the |
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best interests of the child immediately after the filing of the |
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petition but not later than 72 hours before the full adversary |
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hearing. |
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SECTION 6. Section 107.012, Family Code, is amended to read |
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as follows: |
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Sec. 107.012. MANDATORY APPOINTMENT OF ATTORNEY AD LITEM |
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FOR CHILD. In a suit filed by a governmental entity requesting |
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termination of the parent-child relationship or to be named |
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conservator of a child, the court shall appoint an attorney ad litem |
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to represent the interests of the child immediately after the |
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filing, but not later than 72 hours before the full adversary |
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hearing, to ensure adequate representation of the child. |
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SECTION 7. Section 107.0131(a), Family Code, is amended to |
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read as follows: |
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(a) An attorney ad litem appointed under Section 107.013 to |
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represent the interests of a parent: |
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(1) shall: |
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(A) subject to Rules 4.02, 4.03, and 4.04, Texas |
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Disciplinary Rules of Professional Conduct, and not later than the |
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seventh business day [within a reasonable time] after the date of |
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the appointment, interview: |
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(i) the parent, unless the parent's |
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location is unknown; |
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(ii) each person who has significant |
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knowledge of the case; and |
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(iii) the parties to the suit; |
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(B) investigate the facts of the case; |
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(C) to ensure competent representation at |
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hearings, mediations, pretrial matters, and the trial on the |
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merits: |
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(i) obtain and review copies of all court |
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files in the suit during the attorney ad litem's course of |
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representation; and |
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(ii) when necessary, conduct formal |
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discovery under the Texas Rules of Civil Procedure or the discovery |
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control plan; |
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(D) take any action consistent with the parent's |
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interests that the attorney ad litem considers necessary to |
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expedite the proceedings; |
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(E) encourage settlement and the use of |
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alternative forms of dispute resolution; |
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(F) review and sign, or decline to sign, a |
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proposed or agreed order affecting the parent; |
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(G) meet with the parent at least 72 hours before |
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each court hearing [with the parent], unless the court: |
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(i) finds at that hearing that the attorney |
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ad litem has shown good cause why the attorney ad litem's compliance |
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is not feasible; or |
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(ii) on a showing of good cause, authorizes |
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the attorney ad litem to comply by conferring with the parent, as |
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appropriate, by telephone or video conference; |
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(H) abide by the parent's objectives for |
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representation; |
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(I) become familiar with the American Bar |
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Association's standards of practice for attorneys who represent |
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parents in abuse and neglect cases; and |
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(J) complete at least three hours of continuing |
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legal education relating to representing parents in child |
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protection cases as described by Subsection (b) as soon as |
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practicable after the attorney ad litem is appointed, unless the |
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court finds that the attorney ad litem has experience equivalent to |
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that education; and |
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(2) is entitled to: |
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(A) request clarification from the court if the |
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role of the attorney ad litem is ambiguous; |
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(B) request a hearing or trial on the merits; |
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(C) consent or refuse to consent to an interview |
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of the parent by another attorney; |
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(D) receive a copy of each pleading or other |
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paper filed with the court; |
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(E) receive notice of each hearing in the suit; |
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(F) participate in any case staffing conducted by |
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the Department of Family and Protective Services in which the |
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parent is invited to participate, including, as appropriate, a case |
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staffing to develop a family plan of service, a family group |
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conference, a permanency conference, a mediation, a case staffing |
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to plan for the discharge and return of the child to the parent, and |
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any other case staffing that the department determines would be |
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appropriate for the parent to attend, but excluding any internal |
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department staffing or staffing between the department and the |
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department's legal representative; and |
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(G) attend all legal proceedings in the suit. |
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SECTION 8. The changes in law made by this Act apply only to |
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a suit affecting the parent-child relationship filed on or after |
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the effective date of this Act. A suit affecting the parent-child |
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relationship filed before that date is governed by the law in effect |
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on the date the suit was filed, and that law is continued in effect |
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for that purpose. |
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SECTION 9. This Act takes effect September 1, 2023. |