Bill Text: TX HB1499 | 2023-2024 | 88th Legislature | Comm Sub

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Bill Title: Relating to the duties of court-appointed guardians ad litem, attorneys ad litem, and amicus attorneys in certain suits affecting the parent-child relationship.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2023-05-02 - Committee report sent to Calendars [HB1499 Detail]

Download: Texas-2023-HB1499-Comm_Sub.html

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88R20541 BDP-F
By: Campos H.B. No. 1499
Substitute the following for H.B. No. 1499:
By: Dutton C.S.H.B. No. 1499

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