Texas 2023 - 88th Regular

Texas House Bill HB1499 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R20541 BDP-F
2	2	By: Campos H.B. No. 1499
3	3	Substitute the following for H.B. No. 1499:
4	4	By: Dutton C.S.H.B. No. 1499
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the duties of court-appointed guardians ad litem,
10	10	attorneys ad litem, and amicus attorneys in certain suits affecting
11	11	the parent-child relationship.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Sections 107.002(b), (b-1), and (i), Family
14	14	Code, are amended to read as follows:
15	15	(b) A guardian ad litem appointed for the child under this
16	16	chapter shall:
17	17	(1) not later than the seventh business day [within a
18	18	reasonable time] after the date of the appointment, interview:
19	19	(A) the child in a developmentally appropriate
20	20	manner, if the child is three [four] years of age or older;
21	21	(B) the child's caregiver or the administrator of
22	22	the licensed child-placing agency that placed the child [each
23	23	person who has significant knowledge of the child's history and
24	24	condition, including educators, child welfare service providers,
25	25	and any foster parent of the child]; and
26	26	(C) the parties to the suit;
27	27	(2) not later than the 15th business day after the date
28	28	of the appointment, interview each person who has significant
29	29	knowledge of the child's history and condition, including
30	30	educators, child welfare service providers, and any foster parent
31	31	of the child;
32	32	(3) seek to elicit in a developmentally appropriate
33	33	manner the child's expressed objectives;
34	34	(4) [(3)] consider the child's expressed objectives
35	35	without being bound by those objectives;
36	36	(5) [(4)] encourage settlement and the use of
37	37	alternative forms of dispute resolution; and
38	38	(6) [(5)] perform any specific task directed by the
39	39	court.
40	40	(b-1) In addition to the duties required by Subsection (b),
41	41	a guardian ad litem appointed for a child in a proceeding under
42	42	Chapter 262 or 263 shall:
43	43	(1) review the medical care provided to the child;
44	44	(2) in a developmentally appropriate manner, seek to
45	45	elicit the child's opinion on the medical care provided;
46	46	(3) for a child at least 17 [16] years of age,
47	47	ascertain whether the child has received the following documents:
48	48	(A) a certified copy of the child's birth
49	49	certificate;
50	50	(B) a social security card or a replacement
51	51	social security card;
52	52	(C) a driver's license or personal
53	53	identification certificate under Chapter 521, Transportation Code;
54	54	and
55	55	(D) any other personal document the Department of
56	56	Family and Protective Services or single source continuum
57	57	contractor determines appropriate; and
58	58	(4) for a child at least 13 years of age, ascertain
59	59	whether the child has received a personal identification
60	60	certificate under Chapter 521, Transportation Code [seek to elicit
61	61	in a developmentally appropriate manner the name of any adult,
62	62	particularly an adult residing in the child's community, who could
63	63	be a relative or designated caregiver for the child and immediately
64	64	provide the names of those individuals to the Department of Family
65	65	and Protective Services].
66	66	(i) A guardian ad litem appointed to represent a child in
67	67	the managing conservatorship of the Department of Family and
68	68	Protective Services shall, at least 72 hours before each scheduled
69	69	hearing under Chapter 263, determine whether the child's
70	70	educational needs and goals have been identified and addressed.
71	71	SECTION 2. Section 107.003, Family Code, is amended to read
72	72	as follows:
73	73	Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
74	74	CHILD AND AMICUS ATTORNEY. (a) An attorney ad litem appointed to
75	75	represent a child or an amicus attorney appointed to assist the
76	76	court:
77	77	(1) shall:
78	78	(A) subject to Rules 4.02, 4.03, and 4.04, Texas
79	79	Disciplinary Rules of Professional Conduct, and not later than the
80	80	seventh business day [within a reasonable time] after the date of
81	81	the appointment, interview:
82	82	(i) the child in a developmentally
83	83	appropriate manner, if the child is three [four] years of age or
84	84	older;
85	85	(ii) the child's caregiver or the
86	86	administrator of the licensed child-placing agency that placed the
87	87	child [each person who has significant knowledge of the child's
88	88	history and condition, including any foster parent of the child];
89	89	and
90	90	(iii) the parties to the suit;
91	91	(B) not later than the 15th business day after
92	92	the date of the appointment, interview each person who has
93	93	significant knowledge of the child's history and condition,
94	94	including educators, child welfare service providers, and any
95	95	foster parent of the child;
96	96	(C) seek to elicit in a developmentally
97	97	appropriate manner the child's expressed objectives of
98	98	representation;
99	99	(D) [(C)] consider the impact on the child in
100	100	formulating the attorney's presentation of the child's expressed
101	101	objectives of representation to the court;
102	102	(E) [(D)] investigate the facts of the case to
103	103	the extent the attorney considers appropriate;
104	104	(F) [(E)] obtain and review copies of relevant
105	105	records relating to the child as provided by Section 107.006;
106	106	(G) [(F)] participate in the conduct of the
107	107	litigation to the same extent as an attorney for a party;
108	108	(H) [(G)] take any action consistent with the
109	109	child's interests that the attorney considers necessary to expedite
110	110	the proceedings;
111	111	(I) [(H)] encourage settlement and the use of
112	112	alternative forms of dispute resolution; and
113	113	(J) [(I)] review and sign, or decline to sign, a
114	114	proposed or agreed order affecting the child;
115	115	(2) must be trained in child advocacy or have
116	116	experience determined by the court to be equivalent to that
117	117	training; and
118	118	(3) is entitled to:
119	119	(A) request clarification from the court if the
120	120	role of the attorney is ambiguous;
121	121	(B) request a hearing or trial on the merits;
122	122	(C) consent or refuse to consent to an interview
123	123	of the child by another attorney;
124	124	(D) receive a copy of each pleading or other
125	125	paper filed with the court;
126	126	(E) receive notice of each hearing in the suit;
127	127	(F) participate in any case staffing concerning
128	128	the child conducted by the Department of Family and Protective
129	129	Services or a single source continuum contractor; and
130	130	(G) attend all legal proceedings in the suit.
131	131	(b) In addition to the duties required by Subsection (a), an
132	132	attorney ad litem appointed for a child in a proceeding under
133	133	Chapter 262, 263, or 264 shall:
134	134	(1) review the medical care provided to the child;
135	135	(2) in a developmentally appropriate manner, seek to
136	136	elicit the child's opinion on the medical care provided;
137	137	(3) for a child at least 17 [16] years of age:
138	138	(A) advise the child of the child's right to
139	139	request the court to authorize the child to consent to the child's
140	140	own medical care under Section 266.010; and
141	141	(B) ascertain whether the child has received the
142	142	following documents:
143	143	(i) a certified copy of the child's birth
144	144	certificate;
145	145	(ii) a social security card or a
146	146	replacement social security card;
147	147	(iii) a driver's license or personal
148	148	identification certificate under Chapter 521, Transportation Code;
149	149	and
150	150	(iv) any other personal document the
151	151	Department of Family and Protective Services or a single source
152	152	continuum contractor determines appropriate; and
153	153	(4) for a child at least 13 years of age, ascertain
154	154	whether the child has received a personal identification
155	155	certificate under Chapter 521, Transportation Code [seek to elicit
156	156	in a developmentally appropriate manner the name of any adult,
157	157	particularly an adult residing in the child's community, who could
158	158	be a relative or designated caregiver for the child and immediately
159	159	provide the names of those individuals to the Department of Family
160	160	and Protective Services].
161	161	SECTION 3. Sections 107.004(d-1), (d-2), and (d-3), Family
162	162	Code, are amended to read as follows:
163	163	(d-1) A meeting required by Subsection (d) must take place:
164	164	(1) at least 72 hours [a sufficient time] before the
165	165	hearing to allow the attorney ad litem to prepare for the hearing in
166	166	accordance with the child's expressed objectives of
167	167	representation; and
168	168	(2) in a private setting that allows for confidential
169	169	communications between the attorney ad litem and the child or
170	170	individual with whom the child ordinarily resides, as applicable.
171	171	(d-2) An attorney ad litem appointed to represent a child in
172	172	the managing conservatorship of the Department of Family and
173	173	Protective Services or a child who is the subject of a proceeding
174	174	under Chapter 264 shall, at least 72 hours before each scheduled
175	175	hearing under Chapter 263 or 264, determine whether the child's
176	176	educational needs and goals have been identified and addressed.
177	177	(d-3) An attorney ad litem appointed to represent a child in
178	178	the managing conservatorship of the Department of Family and
179	179	Protective Services or a child who is the subject of a proceeding
180	180	under Chapter 264 shall, at least once each month, [periodically
181	181	continue to] review the child's safety and well-being, including
182	182	any effects of trauma to the child, and take appropriate action,
183	183	including requesting a review hearing when necessary to address an
184	184	issue of concern.
185	185	SECTION 4. Section 107.008, Family Code, is amended to read
186	186	as follows:
187	187	Sec. 107.008. SUBSTITUTED JUDGMENT OF ATTORNEY FOR CHILD.
188	188	(a) An attorney ad litem appointed to represent a child or an
189	189	attorney appointed in the dual role may determine that the child
190	190	cannot meaningfully formulate the child's objectives of
191	191	representation in a case because the child has an intellectual or
192	192	developmental disability that causes the child to be incapable of:
193	193	(1) forming [lacks sufficient maturity to understand
194	194	and form] an attorney-client relationship with the attorney;
195	195	(2) making reasonable judgments [despite appropriate
196	196	legal counseling, continues to express objectives of
197	197	representation that would be seriously injurious to the child]; or
198	198	(3) [for any other reason is incapable of making
199	199	reasonable judgments and] engaging in meaningful communication.
200	200	(b) An attorney ad litem or an attorney appointed in the
201	201	dual role who determines that the child because of medical or
202	202	developmental reasons cannot meaningfully formulate the child's
203	203	expressed objectives of representation may present to the court a
204	204	position that the attorney determines will serve the best interests
205	205	of the child.
206	206	(c) If a guardian ad litem has been appointed for the child
207	207	in a suit filed by a governmental entity requesting termination of
208	208	the parent-child relationship or appointment of the entity as
209	209	conservator of the child, an attorney ad litem who determines that
210	210	the child cannot meaningfully formulate the child's expressed
211	211	objectives of representation:
212	212	(1) shall consult with the guardian ad litem and[,
213	213	without being bound by the guardian ad litem's opinion or
214	214	recommendation,] ensure that the guardian ad litem's opinion and
215	215	basis for any recommendation regarding the best interests of the
216	216	child are presented to the court; and
217	217	(2) may present to the court a position that the
218	218	attorney determines will serve the best interests of the child.
219	219	SECTION 5. Section 107.011(a), Family Code, is amended to
220	220	read as follows:
221	221	(a) Except as otherwise provided by this subchapter, in a
222	222	suit filed by a governmental entity seeking termination of the
223	223	parent-child relationship or the appointment of a conservator for a
224	224	child, the court shall appoint a guardian ad litem to represent the
225	225	best interests of the child immediately after the filing of the
226	226	petition but not later than 72 hours before the full adversary
227	227	hearing.
228	228	SECTION 6. Section 107.012, Family Code, is amended to read
229	229	as follows:
230	230	Sec. 107.012. MANDATORY APPOINTMENT OF ATTORNEY AD LITEM
231	231	FOR CHILD. In a suit filed by a governmental entity requesting
232	232	termination of the parent-child relationship or to be named
233	233	conservator of a child, the court shall appoint an attorney ad litem
234	234	to represent the interests of the child immediately after the
235	235	filing, but not later than 72 hours before the full adversary
236	236	hearing, to ensure adequate representation of the child.
237	237	SECTION 7. Section 107.0131(a), Family Code, is amended to
238	238	read as follows:
239	239	(a) An attorney ad litem appointed under Section 107.013 to
240	240	represent the interests of a parent:
241	241	(1) shall:
242	242	(A) subject to Rules 4.02, 4.03, and 4.04, Texas
243	243	Disciplinary Rules of Professional Conduct, and not later than the
244	244	seventh business day [within a reasonable time] after the date of
245	245	the appointment, interview:
246	246	(i) the parent, unless the parent's
247	247	location is unknown;
248	248	(ii) each person who has significant
249	249	knowledge of the case; and
250	250	(iii) the parties to the suit;
251	251	(B) investigate the facts of the case;
252	252	(C) to ensure competent representation at
253	253	hearings, mediations, pretrial matters, and the trial on the
254	254	merits:
255	255	(i) obtain and review copies of all court
256	256	files in the suit during the attorney ad litem's course of
257	257	representation; and
258	258	(ii) when necessary, conduct formal
259	259	discovery under the Texas Rules of Civil Procedure or the discovery
260	260	control plan;
261	261	(D) take any action consistent with the parent's
262	262	interests that the attorney ad litem considers necessary to
263	263	expedite the proceedings;
264	264	(E) encourage settlement and the use of
265	265	alternative forms of dispute resolution;
266	266	(F) review and sign, or decline to sign, a
267	267	proposed or agreed order affecting the parent;
268	268	(G) meet with the parent at least 72 hours before
269	269	each court hearing [with the parent], unless the court:
270	270	(i) finds at that hearing that the attorney
271	271	ad litem has shown good cause why the attorney ad litem's compliance
272	272	is not feasible; or
273	273	(ii) on a showing of good cause, authorizes
274	274	the attorney ad litem to comply by conferring with the parent, as
275	275	appropriate, by telephone or video conference;
276	276	(H) abide by the parent's objectives for
277	277	representation;
278	278	(I) become familiar with the American Bar
279	279	Association's standards of practice for attorneys who represent
280	280	parents in abuse and neglect cases; and
281	281	(J) complete at least three hours of continuing
282	282	legal education relating to representing parents in child
283	283	protection cases as described by Subsection (b) as soon as
284	284	practicable after the attorney ad litem is appointed, unless the
285	285	court finds that the attorney ad litem has experience equivalent to
286	286	that education; and
287	287	(2) is entitled to:
288	288	(A) request clarification from the court if the
289	289	role of the attorney ad litem is ambiguous;
290	290	(B) request a hearing or trial on the merits;
291	291	(C) consent or refuse to consent to an interview
292	292	of the parent by another attorney;
293	293	(D) receive a copy of each pleading or other
294	294	paper filed with the court;
295	295	(E) receive notice of each hearing in the suit;
296	296	(F) participate in any case staffing conducted by
297	297	the Department of Family and Protective Services in which the
298	298	parent is invited to participate, including, as appropriate, a case
299	299	staffing to develop a family plan of service, a family group
300	300	conference, a permanency conference, a mediation, a case staffing
301	301	to plan for the discharge and return of the child to the parent, and
302	302	any other case staffing that the department determines would be
303	303	appropriate for the parent to attend, but excluding any internal
304	304	department staffing or staffing between the department and the
305	305	department's legal representative; and
306	306	(G) attend all legal proceedings in the suit.
307	307	SECTION 8. The changes in law made by this Act apply only to
308	308	a suit affecting the parent-child relationship filed on or after
309	309	the effective date of this Act. A suit affecting the parent-child
310	310	relationship filed before that date is governed by the law in effect
311	311	on the date the suit was filed, and that law is continued in effect
312	312	for that purpose.
313	313	SECTION 9. This Act takes effect September 1, 2023.