By: Uresti S.B. No. 1759
(In the Senate - Filed March 8, 2013; March 25, 2013, read
first time and referred to Committee on Jurisprudence;
April 15, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 0; April 15, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1759 By: Rodriguez
A BILL TO BE ENTITLED
AN ACT
relating to the procedures for the appointment of and the duties of
attorneys ad litem in certain suits affecting the parent-child
relationship.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 107.004, Family Code, is amended by
amending Subsections (b) and (c) and adding Subsection (b-1) to
read as follows:
(b) An attorney ad litem appointed for a child in a
proceeding under Chapter 262 or 263 shall complete at least three
hours of continuing legal education relating to representing
children in child protection cases [advocacy] as described by
Subsection (c) as soon as practicable after the attorney ad litem is
appointed [litem's appointment]. An attorney ad litem is not
required to comply with this subsection if the court finds that the
attorney ad litem has experience equivalent to the required
education.
(b-1) An attorney who is on the list maintained by the court
as being qualified for appointment as an attorney ad litem for a
child in a child protection case must complete at least three hours
of continuing legal education relating to the representation of a
child in a proceeding under Subtitle E each year before the
anniversary date of the attorney's listing.
(c) The continuing legal education required by Subsections
[Subsection] (b) and (b-1) must:
(1) be low-cost and available to persons throughout
this state, including on the Internet provided through the State
Bar of Texas; and
(2) focus on the duties of an attorney ad litem in, and
the procedures of and best practices for, representing a child in a
proceeding under Subtitle E [Chapter 262 or 263].
SECTION 2. Subsection (a), Section 107.013, Family Code, is
amended to read as follows:
(a) In a suit filed by a governmental entity in which
termination of the parent-child relationship or the appointment of
a conservator for a child is requested, the court shall appoint an
attorney ad litem to represent the interests of:
(1) an indigent parent of the child who responds in
opposition to the termination or appointment;
(2) a parent served by citation by publication;
(3) an alleged father who failed to register with the
registry under Chapter 160 and whose identity or location is
unknown; and
(4) an alleged father who registered with the
paternity registry under Chapter 160, but the petitioner's attempt
to personally serve citation at the address provided to the
registry and at any other address for the alleged father known by
the petitioner has been unsuccessful.
SECTION 3. Section 107.0131, Family Code, is amended to
read as follows:
Sec. 107.0131. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
PARENT. (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 within a reasonable
time after 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 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) [(I)] complete at least three hours of
continuing legal education relating to representing parents in
child protection cases [law] 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
[(J) abide by the parent's objectives of
representation;]
(2) [must be trained in child protection law 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 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.
(b) The continuing legal education required by Subsection
(a)(1)(J) [(a)(1)(I)] must:
(1) be low-cost and available to persons throughout
this state, including on the Internet provided through the State
Bar of Texas; and
(2) focus on the duties of an attorney ad litem in, and
the procedures of and best practices for, representing a parent in a
proceeding under Subtitle E [Chapter 262 or 263].
(c) An attorney who is on the list maintained by the court as
being qualified for appointment as an attorney ad litem for a parent
in a child protection case must complete at least three hours of
continuing legal education relating to the representation of a
parent in a proceeding under Subtitle E each year before the
anniversary date of the attorney's listing.
SECTION 4. Subsections (a) and (d), Section 107.0132,
Family Code, are amended to read as follows:
(a) Except as provided by Subsections (b) and (d), an [An]
attorney ad litem appointed under Section 107.013 to represent the
interests of an alleged father is only required to [shall]:
(1) conduct an investigation regarding the
petitioner's due diligence in locating the alleged father,
including by verifying that the petitioner has obtained a
certificate of the results of a search of the paternity registry
under Chapter 160;
(2) interview any party or other person who has
significant knowledge of the case who may have information relating
to the identity or location of the alleged father; and
(3) conduct an independent investigation to identify
or locate the alleged father, as applicable.
(d) If the attorney ad litem is unable to identify or locate
the alleged father, the attorney ad litem shall submit to the court
a written summary of the attorney ad litem's efforts to identify or
locate the alleged father with a statement that the attorney ad
litem was unable to identify or locate the alleged father. On
receipt of the summary required by this subsection, the court shall
discharge the attorney from the appointment.
SECTION 5. Part 1, Subchapter B, Chapter 107, Family Code,
is amended by adding Section 107.014 to read as follows:
Sec. 107.014. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
CERTAIN PARENTS. (a) Except as provided by Subsections (b) and
(e), an attorney ad litem appointed under Section 107.013 to
represent the interests of a parent whose identity or location is
unknown or who has been served by citation by publication is only
required to:
(1) conduct an investigation regarding the
petitioner's due diligence in locating the parent;
(2) interview any party or other person who has
significant knowledge of the case who may have information relating
to the identity or location of the parent; and
(3) conduct an independent investigation to identify
or locate the parent, as applicable.
(b) If the attorney ad litem identifies and locates the
parent, the attorney ad litem shall:
(1) provide to each party and the court the parent's
name and address and any other available locating information
unless the court finds that:
(A) disclosure of a parent's address is likely to
cause that parent harassment, serious harm, or injury; or
(B) the parent has been a victim of family
violence; and
(2) if appropriate, assist the parent in making a
claim of indigence for the appointment of an attorney.
(c) If the court makes a finding described by Subsection
(b)(1)(A) or (B), the court may:
(1) order that the information not be disclosed; or
(2) render any other order the court considers
necessary.
(d) If the court determines the parent is indigent, the
court may appoint the attorney ad litem to continue to represent the
parent under Section 107.013(a)(1).
(e) If the attorney ad litem is unable to identify or locate
the parent, the attorney ad litem shall submit to the court a
written summary of the attorney ad litem's efforts to identify or
locate the parent with a statement that the attorney ad litem was
unable to identify or locate the parent. On receipt of the summary
required by this subsection, the court shall discharge the attorney
from the appointment.
SECTION 6. Subsection (d), Section 262.1015, Family Code,
is amended to read as follows:
(d) A temporary restraining order under this section
expires not later than the 14th day after the date the order was
rendered, unless the court grants an extension under Section
262.201(a-3).
SECTION 7. Section 262.102, Family Code, is amended by
adding Subsection (d) to read as follows:
(d) The temporary restraining order or attachment of a child
rendered by the court must contain the following statement
prominently displayed in boldface type, capital letters, or
underlined:
"YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY. IF YOU
ARE INDIGENT AND UNABLE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT TO
REQUEST THE APPOINTMENT OF AN ATTORNEY BY CONTACTING THE COURT AT
[ADDRESS], [TELEPHONE NUMBER]. IF YOU APPEAR IN OPPOSITION TO THE
SUIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN ATTORNEY,
THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND THE
COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE
COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR APPOINTMENT OF
AN ATTORNEY, THE COURT WILL APPOINT AN ATTORNEY TO REPRESENT YOU."
SECTION 8. Section 262.103, Family Code, is amended to read
as follows:
Sec. 262.103. DURATION OF TEMPORARY RESTRAINING ORDER AND
ATTACHMENT. A temporary restraining order or attachment of the
child issued under this chapter expires not later than 14 days after
the date it is issued unless it is extended as provided by the Texas
Rules of Civil Procedure or Section 262.201(a-3).
SECTION 9. Section 262.201, Family Code, is amended by
amending Subsection (a) and adding Subsections (a-1), (a-2), and
(a-3) to read as follows:
(a) Unless the child has already been returned to the
parent, managing conservator, possessory conservator, guardian,
caretaker, or custodian entitled to possession and the temporary
order, if any, has been dissolved, a full adversary hearing shall be
held not later than the 14th day after the date the child was taken
into possession by the governmental entity, unless the court grants
an extension under Subsection (a-3).
(a-1) Before commencement of the full adversary hearing,
the court must inform each parent not represented by an attorney of:
(1) the right to be represented by an attorney; and
(2) if a parent is indigent and appears in opposition
to the suit, the right to a court-appointed attorney.
(a-2) If a parent claims indigence and requests the
appointment of an attorney before the full adversary hearing, the
court shall require the parent to complete and file with the court
an affidavit of indigence. The court may hear evidence to determine
whether the parent is indigent. If the court determines the parent
is indigent, the court shall appoint an attorney to represent the
parent.
(a-3) The court may, for good cause shown, postpone the full
adversary hearing for not more than seven days from the date of the
attorney's appointment to provide the attorney time to respond to
the petition and prepare for the hearing. The court may shorten or
lengthen the extension granted under this subsection if the parent
and the appointed attorney agree in writing. If the court postpones
the full adversary hearing, the court shall extend a temporary
restraining order issued by the court for the protection of the
child until the date of the rescheduled full adversary hearing.
SECTION 10. Subchapter A, Chapter 263, Family Code, is
amended by adding Section 263.0061 to read as follows:
Sec. 263.0061. NOTICE TO PARENTS OF RIGHT TO COUNSEL.
(a) At the status hearing under Subchapter C and at each
permanency hearing under Subchapter D held after the date the court
renders a temporary order appointing the department as temporary
managing conservator of a child, the court shall inform each parent
not represented by an attorney of:
(1) the right to be represented by an attorney; and
(2) if a parent is indigent and appears in opposition
to the suit, the right to a court-appointed attorney.
(b) If a parent claims indigence and requests the
appointment of an attorney in a proceeding described by Subsection
(a), the court shall require the parent to complete and file with
the court an affidavit of indigence. The court may hear evidence to
determine whether the parent is indigent. If the court determines
the parent is indigent, the court shall appoint an attorney to
represent the parent.
SECTION 11. Subsection (c), Section 107.013, Family Code,
is repealed.
SECTION 12. 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 13. This Act takes effect September 1, 2013.
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