Nov 12 2014

What you need to know about Texas attorneys representing children

What you need to know about attorneys representing children

Chapter 5 – Legal Representation of Children in CPS Cases

Written by: www.nacchildlaw.org

Federal law and several U.S. and Texas Supreme Court cases establish the underpinnings of legal representation of children who are the subject of lawsuits filed by DFPS.  The Texas Legislature decided, in response to the Sims case discussed earlier, to require that each child in a child protective services case have both an appointed attorney and an appointed guardian. Texas also invented the “dual role” for an attorney to serve both as the child’s lawyer and as the child’s “best interest” representative.  The dual role presents obvious dangers of a conflict between the “best interest” of the child and the “expressed interests” of the child client.  The existence of a separate guardian role helps minimize the potential for conflicts, or complaints of conflict.

Chapter 107 of the Texas Family Code now provides detailed guidance for court appointed representatives in child protective services cases, including attorneys for parents, attorneys for children, and guardians ad litem for children.  An attorney ad litem (AAL) is defined as “an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.”  It is noteworthy that this definition applies to all court appointed attorneys, including attorneys for parents, but commonly the term “attorney ad litem” refers to the attorney appointed to represent a child in a DFPS case.  Additionally, the statute proceeds to give detailed instructions to attorneys for children, but makes no further mention of specific duties for parents’ attorneys.  Unless there is a conflict, the court may appoint a single attorney to represent all children in the case and may appoint one attorney to represent both parents.

PRACTICE TIP: In cases involving two or more siblings, attorneys must carefully analyze whether the siblings have a conflict of interest and need separate counsel.  For example, a conflict of interest may arise where one child reports physical or sexual abuse but a sibling says the report is false; where there is physical or sexual abuse between siblings; where one sibling wants to return to the parents’ home but another sibling believes the home is unsafe; where one sibling does not want another sibling to be separately adopted, etc.  

As Texas has worked toward a consistent set of rules to comply with federal mandates and protect children in the courts, the statutory material regarding children’s lawyers has grown. Although federal law does not mandate legal representation for children, the Child Abuse Prevention and Treatment Act requires appointment of a guardian ad litem for children who are subject to child protection proceedings.  CAPTA does not indicate that the representative must be an attorney; however, several states have interpreted the statute to require legal representation for children.  Furthermore, recent amendments to federal law enhance the requirement and mandate that the representative must be adequately trained.  

Few states have considered the various categories of possible representatives for children as carefully as Texas. If we have not by now exhausted the possibilities, we certainly have come close.

Texas AttorneysLawyers, Laymen and Children under Texas Law

Chapter 107, Family Code, now provides for: (1) a lawyer to represent the child in the traditional attorney-client manner, (2) a guardian to represent the child’s best interests, even if the child might disagree, and to testify about the facts of the case; (3) a dual role attorney who is required to fulfill both roles, but cannot testify; and (4), in private cases only, an amicus attorney who functions as a lawyer, but does not represent the child.

Powers and duties of the various representatives are set out in four separate sections of Chapter 107.  The statute makes it clear that a non-attorney guardian, in addition to other specified rights and duties, must be permitted to testify.  Lawyers representing children or serving as an “amicus” attorneys also have specified powers and duties, including the right to participate in the conduct of the litigation to the same extent as an attorney for a party.  Additional duties are separately set out for the attorney ad litem for the child and for the amicus attorney.  The statute makes it clear that lawyers are subject to disciplinary action by the State Bar if they fail to adhere to their ethical duties.  Because lawyers are subject to the Texas Disciplinary Rules of Professional Conduct,  lawyers are prohibited from testifying in court or submitting a report, except as permitted by the disciplinary rules.

Scope and Duration of Appointment

The appointment of an attorney ad litem or guardian ad litem for a child in a CPS case continues for any period set by the court.  The duty of a child’s attorney to “participate in the conduct of the litigation to the same extent as an attorney for a party,” specifically includes filing petitions, motions responses or objections as necessary to represent the child. The ABA standards suggest several “petitions, motions, responses or objections” that may be filed “as necessary to represent the child.”  Among the pleadings that might be filed are: motions for mental or physical examination of a party or the child; for parenting, custody or visitation evaluation; to increase, decrease, or terminate contact or visitation; for orders relating to a change of placement (prohibiting or requiring the change); for contempt for non-compliance with a court order; to order specific services for the child or family; to protect the child’s confidentiality or property; or to dismiss the suit; and petitions for termination of the parent-child relationship; to establish or refute parentage; or to establish child support.

The attorney also shall “take any action consistent with the child’s interests that the attorney considers necessary to expedite the proceedings; and encourage settlement and the use of alternative forms of dispute resolution.”

Expanding or Modifying Scope of Representation

The American Bar Association (ABA) Standards place a specific duty on the child’s attorney to seek authority from the court to “pursue issues on behalf of the child, administratively or judicially, even if those issues do not specifically arise from the court appointment.”  Fortunately, since the appointment as attorney ad litem in Texas includes the right to “participate in the conduct of the litigation to the same extent as an attorney for a party,” all issues reasonably included in the scope of the Suit Affecting the Parent Child Relationship (SAPCR) may be addressed through pleadings or motions.  Thus, an attorney ad litem in Texas automatically has authority to pursue many of the collateral issues listed in the ABA Standard, including child support, custody, paternity, termination of parental rights and, if the appointment is not limited by the court to the time period before a final termination order, adoption of the child. If, however, the attorney needs to seek relief not available in the SAPCR court, such as a probate guardianship, federal benefits, defense of the child in juvenile court from criminal or other charges, a personal injury suit, or defense of the child in an involuntary commitment proceeding through the mental health system, a separate appointment with specific reference to the collateral proceeding will be necessary.  The court has broad authority to limit the duration of the appointment, but not the scope of the appointment with respect to specific SAPCR issues.

PRACTICE TIP:  Children in foster care often need special education services.  Children’s counsel should become familiar with the educational rights provided by the federal Individuals with Disabilities Education Act [IDEA].  Counsel should ask clients and caregivers how they are doing in school, review school records, and if problems arise, ensure that the client has an up-to-date and effective Individualized Education Plan [IEP].  Counsel should also ensure that students with IEPs are not suspended, expelled or otherwise disciplined for conduct that is a result of their disabilities.  If special-education issues arise that are beyond the scope of counsel’s expertise, counsel should consult with or refer the client to an attorney specializing in education law.  

Also, older foster children may have experienced multiple school changes, and may need help and advocacy to gathering school records, obtain proper credit for partial school years,  determine what requirements they must complete to graduate from high school, and develop a plan to make up missing credits, e.g. through summer school, independent study, adult school, etc.

Attorney ad Litem, Guardian ad Litem and Special Advocates, Dual Role and Amicus Attorney

Recognizing that legal representation of a child, particularly a child victim of abuse or neglect, presents challenges unknown to the representation of adult-clients, the Texas Family Code includes specific requirements of children’s attorneys.  An attorney ad litem for the child must “become familiar with the American Bar Association’s Standards of Practice for Attorneys who Represent Children in Abuse and Neglect Cases, the suggested amendments to those standards adopted by the National Association of Counsel for Children, and the American Bar Association’s Standards of Practice for Attorneys who Represent Children in Custody Cases” as appropriate to the “nature” of the appointment.

Attorney ad Litem

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 is required to appoint an attorney ad litem and a guardian ad litem for the child, immediately after the filing of the suit and before the full adversary hearing.

An attorney ad litem for a child is an advocate for the child, and must “represent the child’s expressed objectives of representation and follow the child’s expressed objectives of representation during the course of litigation if the attorney ad litem determines that the child is competent to understand the nature of an attorney-client relationship and has formed that relationship with the attorney ad litem.”

An attorney appointed as a guardian ad litem in a case in which the child has an attorney ad litem is prohibited from functioning as an attorney, but may take actions that might be taken by a non-attorney guardian, including testifying in the case.

Although a child may have both an attorney and a guardian ad litem in a suit filed by DFPS, if the parents cannot pay fees and expenses the county is only required to pay the attorney, not the guardian.

Thus, every child in a Texas CPS case has two distinct advocates, or an attorney with both the guardian and the attorney roles.

“Attorney ad litem” means (1) an attorney, (2) who provides legal services to a person, including a child, and (3) who owes that client the duties of undivided loyalty, confidentiality, and competent representation.  This definition applies to an attorney ad litem for a child, for an incapacitated person or for an indigent adult parent of the child. The ABA Standards state that a child’s attorney “owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult.”

The specified “powers and duties” in Chapter 107 discussed below apply only to attorneys appointed for children; Parents’ attorneys are expected to represent the parents as they would any other adult client.

The attorney ad litem appointed for a child in a CPS case must complete three hours of continuing legal education in child advocacy or have experience determined by the court to be equivalent to that training.  This provision is consistent with a growing national consensus, reinforced to some extent by federal law, that minimum standards of training for child advocates in the protective services system are essential.

An attorney ad litem for a child “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 an authorized agency; and (G) attend all legal proceedings in the suit.  The attorney “shall” participate in the conduct of the litigation to the same extent as an attorney for a party, and take any action consistent with the child’s interests that the attorney considers necessary to expedite the proceedings.

An attorney for a child is also required to “seek to elicit in a developmentally appropriate manner the child’s expressed objectives of representation.”  The attorney shall, in a developmentally appropriate manner, advise the child.  The advisor role is recognized as a general duty to clients by Disciplinary Rule 2.01 and by the ABA standards.

If the child is competent to and has formed an attorney-client relationship with the attorney, it is the lawyer’s duty to follow the child’s expressed objectives of representation throughout the course of the litigation.  There is some dispute between the NACC and the ABA on how to resolve differences between the appointed lawyer and the child.  The NACC version rejects “robotic allegiance” to the child’s directives. Both versions, however, require that the attorney whenever possible honor the child’s expressed objectives of representation.

The attorney must also “consider the impact on the child in formulating the attorney ad litem’s presentation of the child’s expressed objectives of representation to the court.”  That is, as with any client, it is the lawyer’s role to make the best possible presentation of the child’s position, while minimizing potential harm to the client.

Guardian ad Litem

A “guardian ad litem” or GAL is a person (not functioning as a lawyer unless serving in the “dual role”) who is “appointed to represent the best interests of a child.”  An attorney may be appointed in the “dual role” of guardian and attorney ad litem only in a “suit filed by a governmental entity.”  

The court may appoint a volunteer advocate or other adult to serve as guardian ad litem. The court may also appoint a court appointed special advocate (CASA) as a “volunteer advocate,” and not as guardian ad litem for the child.  In that event, however, the court must appoint another person as guardian ad litem or leave the attorney in the dual role, since the child in entitled to both.

CASA is not entitled to fees, even if appointed as guardian ad litem in a private case.

“Guardian ad litem” means a person appointed to represent the best interests of a child. The term includes: (A) a volunteer advocate appointed under Subchapter C; (B) a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests; (C) an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or (D) an attorney ad litem appointed to serve in the dual role.  Note that this definition appears to exclude the appointment of an attorney acting in the role of an attorney as a guardian ad litem.  However, there is nothing in the language that would make possession of a bar card conclusive proof that the holder lacks the “competence, training, and expertise” sufficient to represent the best interest of the child as a guardian ad litem.

The Family Code does not specify a minimum training requirement for the GAL, but it should be noted that National CASA has adopted mandatory Standards for Local CASA/GAL Programs (CASA Standards).  Those standards require that every CASA volunteer receive a minimum of 30 hours of specific pre-service training, including training on the applicable law, court procedures, family dynamics and child development, as well as at least 12 hours of in-service training each year.  Many local CASA programs go beyond these minimum standards in training their volunteers, particularly if serving as GAL in the local courts.

A guardian ad litem may “conduct an investigation to the extent that the guardian ad litem considers necessary to determine the best interests of the child” in the particular case.  The guardian ad litem “shall” interview the child and others, including the foster parents and parties.  Note that unless the guardian is an attorney, the disciplinary rules do not restrict his communication with others in the case.

The guardian must elicit the child’s “expressed objectives,” but is not bound by the child’s objectives.

A guardian ad litem is entitled to: (1) receive a copy of each pleading or other paper filed with the court in the case in which the guardian ad litem is appointed; (2) receive notice of each hearing in the case; (3) participate in case staffings by an authorized agency concerning the child; (4) attend all legal proceedings in the case, but may not call or question a witness or otherwise provide legal services unless the guardian ad litem is a licensed attorney who has been appointed in the dual role; (5) review and sign, or decline to sign, an agreed order affecting the child; and (6) explain the basis for the guardian ad litem’s opposition to the agreed order if the guardian ad litem does not agree to the terms of a proposed order.  

A guardian ad litem may be compelled to attend any hearing and testify.  The court must “ensure in a hearing or in a trial on the merits that a guardian ad litem has an opportunity to testify and submit a report regarding the guardian ad litem’s recommendations regarding: (1) the best interests of the child; and (2) the bases for the guardian ad litem’s recommendations.

The guardian ad litem may submit a written report, but if he does so, the report must be provided to the parties not later than the date directed by the court in a scheduling order or 10 days prior to trial in a contested case.  

A report to the court by a guardian ad litem is not automatically admissible for review by a jury, but it may be offered and introduced into evidence if permitted by the Texas Rules of Evidence.  That is, it may be proved up as a business record, and the party opposing introduction would have to attack the report on hearsay or other grounds to keep it out of evidence.

In a jury trial, the guardian ad litem may need to be listed as a witness in response to a proper discovery request, since the statute specifies that in “a non-jury trial, a party may call the guardian ad litem as a witness for the purpose of cross‑examination regarding the guardian’s report without the guardian ad litem being listed as a witness by a party.”  The same subsection provides that the guardian ad litem must be permitted to testify in the narrative if no party calls him as a witness.  The drafting leaves some ambiguity with respect to whether a guardian ad litem may insist on testifying before the court in a jury trial as well as in a non-jury trial.  Arguably, the provision mentioned above that a court “shall ensure” that a non-attorney guardian ad litem “has an opportunity to testify” concerning the best interests of the child and the guardian ad litem’s reasons for any recommendations, places all parties on notice that the guardian is a witness and trumps the exclusionary rules under the Rules of Civil Procedure. Of course the safer course is for any attorney that might want the evidence to always list the guardian ad litem as a witness in response to proper discovery requests.

The provisions relating to the duties and powers of a guardian ad litem do not automatically apply an attorney in the “dual role.” See the discussion below. An attorney may serve solely as a guardian ad litem in a CPS case—for example, as a CASA volunteer, but in such a case would be prohibited from functioning as an attorney in the case by performing legal services, engaging in discovery other than as a witness, arguing the case or examining other witnesses.

If a child cannot meaningfully formulate objectives of representation, the guardian ad litem must be consulted concerning the child’s best interests and the attorney must ensure that the guardian ad litem’s opinion and basis for any recommendation are presented to the court.

Dual Role Attorney

The court may appoint the same person in a dual role to serve as both attorney and guardian ad litem.  Unless a guardian ad litem is also appointed, an attorney appointed to represent the child in a suit by a governmental entity is presumed to be serving in the dual role.  

“Dual role” means the role of (1) an attorney who is (2) appointed under Section 107.0125 to act as (3) both guardian ad litem and attorney ad litem for a child in a suit filed by a governmental entity.  Just as an amicus attorney cannot be appointed in a child protective services case, an attorney may not serve in the “dual role” in a private custody case.

The dual role attorney has all the duties, powers and responsibilities assigned to the child’s guardian ad litem, except the duty to make reports or testify. As an attorney ad litem, the dual role attorney is specifically prohibited from submitting a report into evidence or testifying except as permitted by the Disciplinary Rules.  Thus, the dual role attorney must determine and represent the “best interests of the child” as well as seek to elicit and represent the child’s expressed objectives of representation.

An attorney appointed in a child protective services case is presumed to be appointed in the dual role unless a separate guardian is appointed.

Removal from Dual Role

An attorney appointed in the dual role may request the court to appoint another person to act as guardian ad litem for the child; if the request is granted the attorney thereafter serves as attorney ad litem only.  The court on its own motion may at any time appoint a guardian ad litem and restrict the attorney to acting as attorney for the child.  Although these provisions do not mandate that the attorney request, or the trial court grant a motion to withdraw from the GAL role, it should be noted that ethical guidance provided by the American Bar Association and the National Association of Counsel for Children (NACC) both require that the attorney/guardian, after counseling with the child, shall request the appointment of a guardian ad litem if the child’s choices are deemed by the attorney to be “seriously injurious,” and shall thereafter vigorously represent the child’s expressed objectives of representation.

Amicus Attorney ad Litem and GAL in Private Cases ONLY

An “amicus attorney” may be appointed only in a suit other than a “suit filed by a governmental entity,” “to provide legal services necessary to assist the court in protecting a child’s best interests rather than to provide legal services to the child.”  In other words, in a private custody case the court may have a “best interests” attorney who is not bound by the child’s expressed objectives of representation.  Since the amicus attorney does not represent the child and can never be appointed in an abuse or neglect case, she is not required to “become familiar” with the ABA or the NACC standards of practice for attorneys in abuse and neglect cases, but is required to become familiar with the ABA standards of practice for attorneys who represent children in custody cases.

In the unlikely event that a private custody case turns into a CPS case by DFPS intervening and seeking termination of one or both parents or to be named as managing conservator of the child, the amicus attorney should withdraw and an attorney ad litem or “dual role” attorney should be appointed. The presence of an amicus attorney does not alter the mandatory duty of the court to appoint representatives for the children. In other words, in a Child Protective Services suit there must be an attorney (and guardian) ad litem for the child, not simply an attorney for the court. Chapter 107 does not allow for blended CPS and private cases. The court is expressly prohibited from appointing an amicus attorney in a suit filed by a governmental entity.  Although the express prohibition against appointing an amicus attorney in a suit filed by a governmental entity would arguably not apply if the appointment already exists before DFPS intervenes, continuing the amicus appointment would certainly confuse the issues and exponentially complicate the litigation.

Substituted Judgment of Attorney for Child

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 “lacks sufficient maturity to understand and form an attorney‑client relationship” with the attorney.  Thus, if an attorney determines that a client is mature enough to understand and form an attorney-client relationship; substituting judgment under Section 107.008 would not be available.  Substituted judgment derives in part from the ABA standards “to the extent that a child cannot express a preference, the child’s attorney shall make a good faith effort to determine the child’s wishes and advocate accordingly, or request appointment of a guardian ad litem.”  The NACC standards take a broader view of the attorney’s right to determine how to handle an immature child and provide that “[w]hile the default position for attorneys representing children under these standards is a client directed model, there will be occasions when the client directed model cannot serve the client and exceptions must be made.  In such cases, the attorney may rely upon a substituted judgment process (similar to the role played by an attorney guardian ad litem), or call for the appointment of a guardian ad litem, depending upon the particular circumstances, as provided herein.”

An attorney may also substitute judgment if the attorney determines the child cannot meaningfully formulate objectives of representation because despite appropriate legal counseling, the child continues to express objectives of representation that would be seriously injurious to the child.” Both the ABA standards and the NACC version restrict an attorney’s authority to overrule a child.  “If the child’s attorney determines that the child’s expressed preference would be seriously injurious to the child (as opposed to merely being contrary to the lawyer’s opinion of what would be in the child’s interests), the lawyer shall, after unsuccessful use of the attorney’s counseling role, request appointment of a separate guardian ad litem and continue to represent the child’s expressed preference, unless the child’s position is prohibited by law or without any factual foundation.  The child’s attorney shall not reveal the basis of the request for appointment of a guardian ad litem which would compromise the child’s position.”  As noted above, substituted judgment should be used with great caution, since taking actions contrary to the expressed decisions of a client may violate various provisions of the Texas Disciplinary Rules of Professional Conduct.

The broadest “substituted judgment” provision in Chapter 107, and one that has caused some concern among child advocates is that the attorney may determine that the child cannot meaningfully formulate the child’s objectives of representation because for some reason the child is incapable of making reasonable judgments and engaging in meaningful communication.  Once this determination is made, an attorney may present a position that the attorney determines will serve the best interests of the child.  This language appears to derive at least in part from the NACC proposal for Standard B-4 (2), which suggests that the attorney may “rely upon a substituted judgment process” when the child is “very young or for some other reason is incapable of judgment and meaningful communication.”

An attorney ad litem or attorney appointed in the dual role who determines that the child cannot meaningfully formulate the child’s expressed objectives of representation (1) shall, if a guardian ad litem has been appointed for the child, consult with the guardian ad litem and, without being bound by the guardian ad litem’s opinion or recommendation, (2) 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 (3) may present to the court a position that the attorney determines will serve the best interests of the child.

If no guardian ad litem has been appointed, “an attorney ad litem or an attorney appointed in the dual role who determines that the child 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.

The ABA standards and the NACC proposed revisions are not in agreement on how to handle the situation in which a child does not agree to actions that appear to be in the child’s best interests. “Child’s interests” in the ABA standards equates to the child’s “expressed preferences,” which the child’s attorney is bound to follow throughout the course of the litigation.  Advocating for the child’s best interests is purely the job of the guardian ad litem, who must consider, but is not bound by the child’s “expressed preferences.”  In this situation, the guardian ad litem does not direct the lawyer’s representation of the child; the lawyer continues to be bound by the child’s expressed preference.

The National Association of Counsel for Children disagreed with the formulation of the duties set out in ABA standard B-4, and adopted proposed revisions to the 1996 standards on April 21, 1999. The proposed revisions eliminated the duty of the child’s lawyer to make a good faith effort to determine the child’s wishes and advocate accordingly, in favor of a somewhat more complicated approach heavily dependent upon use of the counseling function (advisor role) of the child’s attorney, and a more expansive approach to substituted judgment.

“To the extent that a child cannot meaningfully participate in the formulation of the client’s position (either because the child is preverbal, very young or for some other reason is incapable of judgment and meaningful communication), the attorney shall substitute his/her judgment for the child’s and formulate and present a position which serves the child’s interests.  Such formulation must be accomplished through the use of objective criteria, rather than solely the life experience or instinct of the attorney.  The criteria shall include but not be limited to:

  • Determine the child’s circumstances through a full and efficient investigation;
  • Assess the child at the moment of the determination;
  • Examine each option in light of the two child welfare paradigms; psychological parent and family network; and
  • Utilize medical, mental health, educational, social work and other experts.

It should be noted that although these “objective criteria” were adopted by the NACC in April of 1999, they have not been accepted by the ABA, nor have they been adopted by statute or court rule in any jurisdiction.

No matter which standards the attorney may find more attractive or understandable, it would be dangerous to forget that by definition the child’s lawyer owes “undivided loyalty” to the child client.  Texas’ Disciplinary Rules of Professional Conduct require, ultimately that a lawyer abide by the client’s decisions.  The use of the lawyers “advisor” role, as suggested by the ABA and NACC standards, is also supported by the Disciplinary Rules.

Advocating against the Guardian ad Litem

What if the child can “direct” the litigation to some extent, but the child’s preferences are deemed by the guardian ad litem as being contrary to the child’s “best interests” in the case?  The primary duty of an attorney ad litem for any party, including the child” is “undivided loyalty” to that party. The NACC version of the Standards of Practice asserts that “loyalty” does not equate to “robotic allegiance” to the wishes of the child.  The NACC’s emphasis on a “mutually arrived upon” legal strategy between the child and the attorney echoes the “advisor” function of an attorney under Texas’ Disciplinary Rules.  Ultimately, however, a lawyer must, in representing a client, abide by that client’s decisions.Even if a lawyer originally appointed in the dual role must request appointment of a guardian ad litem because the child’s choice would be “seriously injurious” to the child, the ABA standards require the lawyer to continue representing the child’s “expressed preference” unless that preference is “prohibited by law or without factual foundation.”  The NACC standards agree on this point.

Confidentiality and Privileges

There is no privilege or confidentiality provision in Chapter 107 relating to communications between a guardian ad litem and the child.  However, some of the information gathered by the guardian ad litem—for example, information relating to the location or names of the foster care providers—may be restricted by other law from disclosure without prior hearing and court order. The Human Resources Code provides a criminal penalty for dissemination of confidential information from records of DFPS of Family and Protective Services without authorization.  CASA as an organization also has a confidentiality provision with respect to the organization’s records.

Attorney-client communications and attorney work product are protected, whether the attorney is serving solely as attorney ad litem, in the dual role, or as an amicus attorney.  This provision is not restricted to attorneys for children, but would also apply to an attorney for a parent or incapacitated person. Of course, the duty to report child abuse or neglect overrides all other confidentiality provisions.

Breaking Child Confidences

There is no exception to the duty to report child abuse for attorneys representing child clients.  As a professional having “cause to believe” that a child has been or may be abused or neglected, or is a victim of sexual abuse, the attorney ad litem or dual role attorney has a duty to make a report within 48 hours to the child abuse hotline [(800) 252-5400].  The duty to report is explicitly applicable to communications that would otherwise be covered by the attorney-client privilege.  Failure to report is a class B misdemeanor.  Although the statute is not explicit on this point, it is generally agreed that the duty does not apply to communications about abuse or neglect that have already been reported (i.e. discussions about the abuse that is the subject of the suit in which the attorney has been appointed, unless they relate new or different abuse, do not have to be shared with DFPS over the child client’s objection).

Even if a report has to be made, an attorney does not have the right to reveal the content of confidential communications without the child-client’s consent except to the minimum extent necessary to make the report.  Since the attorney-client privilege can be used to exclude testimony by the lawyer at court about the communications, it should also apply to limit the report. Of course the best option is to convince the child either to authorize the lawyer to reveal the confidences or to report the abuse directly to the caseworker or another adult, but if the child refuses to follow the advice and make the report, the attorney must do so.

If the information is not a new allegation of abuse, but simply confirms the prior abuse and raises questions about the child’s “expressed objective of representation,” the attorney must maintain the confidentiality and continue to advocate for the child unless “despite appropriate legal counseling” the child continues to express objectives that would be seriously injurious to the child.  Even then, the ABA Standards would require that the lawyer not simply substitute judgment entirely, but take the minimum steps necessary to ensure the child’s safety while supporting the child’s direction as much as possible.

Immunity from civil damages

A guardian ad litem or attorney ad litem is not liable for civil damages arising from “a recommendation made or an opinion given” in the capacity of guardian or attorney ad litem.  That subsection does not apply to “an action taken or a recommendation or opinion given” in bad faith, with malice, with conscious indifference or reckless disregard to the safety of another, or “that is grossly negligent or willfully wrongful.” Note that the immunity applies only to “recommendations or opinions” but that the exception for bad faith applies also to “actions” taken in the role of guardian ad litem or attorney ad litem.  The provision from which this section evolved, former section 107.003, applied only to guardians, and was, apparently, an attempt to codify Delcourt v. Silverman.  These provisions will not protect an attorney from the State Bar’s disciplinary procedures, which are specifically mentioned in Chapter 107.

How do the Texas Disciplinary Rules of Professional Conduct Apply to a Child’s AAL?

Recent revisions to Chapter 107, as discussed above, have reinforced the traditional role of an attorney by defining an attorney ad litem as “an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.”  Although an attorney appointed under Chapter 107 must “become familiar with” the American Bar Association’s standards of practice for attorneys who represent children in abuse and neglect cases, the suggested amendments to those standards adopted by the National Association of Counsel for Children and ABA standards of practice for attorneys who represent children in custody cases, neither the Family Code nor the ABA/NACC standards overrule the lawyer’s duty of undivided loyalty, confidentiality and competent representation under the disciplinary rules.  Disciplinary Rules mentioned in Chapter 107 are Rules 4.02, 4.03 and 4.04, cited as considerations in the statutory mandate to interview the child, potential witnesses and the parties, and Rule 3.08, cited in support of the prohibition on trial testimony by attorneys.  In the event of a conflict between the “standards” and the disciplinary rules, an attorney must follow the rules, or face the prospect of disciplinary action by the bar.  

A lawyer appointed under Chapter 107, Family Code who fails to perform the duties required by Sections 107.003 (powers and Duties of Attorney Ad Litem for Child and Amicus Attorney) and 107.004 (Additional Duties of Attorney ad Litem for Child) is subject to disciplinary action through the State Bar’s grievance process.  A few of the Texas Disciplinary Rules of Professional Conduct that should be considered in the context of representing children under Chapter 107 are discussed below. Of course, many other rules could come into play depending on the circumstances of any particular case.

Generally, what can and what should a child’s attorney ad litem do?

Attorney Fact Gathering

An attorney ad litem appointed to represent a child must interview the child, if the child is four years of age or older in a “developmentally appropriate” manner.
The attorney must also interview the parents and “each person who has significant knowledge of the child’s history and condition, including any foster parent of the child; and the parties to the suit.  As an attorney, the lawyer must keep in mind Disciplinary Rules 4.02 (communication with one represented by counsel), 4.03 (dealing with unrepresented persons) and 4.04 (respect for rights of third persons).

The attorney must investigate the facts of the case to the extent the attorney considers appropriate.  The attorney is required to obtain and review copies of relevant records relating to the child.  These records should include:

  • Pleadings filed by the Department
  • Affidavit of Removal
  • Removal court report
  • Any other relevant court documents
  • Offense reports/criminal records
  • Medical, educational, psychological, or other records of client

The appointing court is required to include in the appointment order for the guardian or attorney ad litem authorization for immediate access to the child and any information relating to the child. This access may be restricted by other laws with respect to medical or mental health records.  

Meeting the client

One of the most important and first things an Attorney Ad Litem must do is meet the client.  The ABA standards go on to say that “irrespective of the child’s age, the child’s attorney should visit with the child prior to court hearings and when apprised of emergencies or significant events impacting on the child.”  This requirement is now in the Family Code. An attorney ad litem must meet before each court hearing with the child, if the child is at least four years of age, or with the child’s caretaker if the child is younger than four.  The Family Code requires the Attorney Ad Litem to interview their client in a developmentally appropriate manner, if the child is four years of age or older.  In 2006, the Office of the Attorney General published an opinion that a telephone interview did not meet the definition of the statutory requirement to “meet” the client.  Op. Tex. Att’y Gen. No. GA-0405 (2006), but in 2007, the 80th Legislature again changed the statute by adding subsection (c) which allows an attorney for a child to forgo meeting their client if the court finds at the hearing that the attorney’s compliance with subsection (d) is not feasible or in the best interest of the child.  

PRACTICE TIP:  Meet your client in their placement so you can observe how the child is doing there.  The more you visit your client, the better the opportunity to develop trust.  If possible, meet and observe your client alone and with siblings or other members of the household.

Age of client

The age of a client is important when you are trying to determine whether you believe your client is capable of forming a meaningful relationship with you and whether your client understands the meaning of the attorney-client relationship.  To many children in foster care, the Attorney Ad Litem is just one more person who comes around periodically and asks a whole lot of questions.  And, again the Attorney Ad Litem is often left with making an assessment of a child’s situation without much input from the child.  However, the Attorney Ad Litem should always try to elicit the desires and wishes from every child who is able to communicate.  Keep in mind that many children are preverbal or may be impaired and therefore may lack the language acquisition, expression and cognitive development necessary to communicate with their Attorney Ad Litem in a way that enables the Attorney Ad Litem to understand the child and take direction.

Talking with the Child Client

Communication is the first duty owed to any client.  The court-appointed attorney must meet with the child or the child’s caretaker, if the child is younger than four, prior to each court hearing. T.F.C. Chapter 107 requires attorneys, whether designated as attorneys ad litem or guardians ad litem, to communicate with the child client in a “developmentally appropriate manner.”  This language is derived from and should be understood in the context of the ABA Standards. The Standards, in turn, refer to a valuable book on questioning children first published in 1992.  The first principle cited by Dr. Walker is that “we do not question children.” That is, each child must be approached as an individual and interviewed with an eye to determining how the child’s experience as culture, as well as age, affect that particular child’s ability to participate in the litigation.

The lawyer is not required to operate alone in attempting to understand the child client. A critical part of representation of a child client to investigate the child’s history and condition, including interviewing individuals who are familiar with the child, such as the parties or the foster parents. With this background, the attorney should be able to assess the child’s ability to understand the process and the realistic options that may be available in the case.  Based on that assessment, the attorney should “present developmentally appropriate” choices in order to seek to elicit the child’s “expressed preferences” for the representation.  For example, in a particular case the child may be able to indicate preferences as between available potential caretakers.

As a general rule, the attorney should be aware that even a mature child will likely be much more literal in interpreting language than an adult, and that legal jargon and legal concepts will be even more mysterious to the child than to an adult client.  Preschoolers are very literal, do not handle abstractions, have limited vocabularies and often develop idiosyncratic usages of words, have difficulty with pronouns and negatives, especially double negatives, cannot express confusion –almost never will state “I don’t understand,” and will tend to agree with adults, because they expect to be directed by adults.  Between ages seven to ten, children are better able to disagree if appropriate, but still have difficulty with abstractions, may be unclear about time concepts and complex or unusual language, such as passive constructions, still generally are unable to give an adult-level narrative of an event, and are easily intimidated, confused or diverted by adults.  Even teenagers should not simply be treated like adult clients without exploring actual abilities.  Many still have no clear sense of historical time, are unable to formulate or process complex sentences, are confused by unfamiliar language and jargon, and are very unlikely to admit confusion by asking for clarification.

It is essential for effective communication that the lawyer meets with the child where the child is comfortable—in other words, children’s attorneys make house calls. Meeting outside the protection of the attorneys’ office makes preservation of the lawyer’s independence from the pressures of other participants in the litigation, such as foster parents, a bit more difficult. It is also essential to keep in mind that the attorney-client privilege can be compromised if others are permitted to be present, at least within ear-shot, when the attorney and child meet. A serious temptation is to meet with sibling groups together; this is a temptation that must be resisted, for a number of reasons. Group meetings may be appropriate to establish rapport, but it is essential that each child be given ample opportunity to be considered as an individual.

One good technique to explain the lawyer’s role is to explain to the child that the child is the “boss” with respect to how to handle the case. It is essential to stick with common and simple words and concepts. The child must be permitted, and encouraged, to talk about anything.  Acknowledge the alleged abuse, but do not investigate by asking the child. In general, a positive focus on what can be done in the future is much more productive than dwelling on the past. Do make the judge the center of the case and be very clear that neither you nor any of the other adults in the case make the ultimate decision about what will happen. Enlist the child, is he or she is able and willing to do so, in helping to shape the case. For example: “Why should the judge approve doing [what you want to do]? How would that make things better for you? How could we show the judge it would work out right?” Remind the client that you will help make the best case you can, but you are only the lawyer.

PRACTICE TIP:  During the first meeting with a child client, the attorney should explain in age-appropriate terms what the child can expect from the attorney, and the nature of the attorney-client relationship.  Counsel should explain attorney-client privilege but also explain that the privilege is not absolute.  For example:  “Because I’m your lawyer, everything you tell me is private, and I will not tell anyone what we talked about, unless you say I can.  But there is one exception.  If you tell me someone is abusing you or neglecting you, I have to report it.”

PRACTICE TIP:  When interviewing your client, it’s suggested that you do not interrogate the child about the abuse or neglect they may have suffered when you meet the child for the first time or possibly during future meetings, unless the child initiates the conversation.  This information should be available to you through court reports, the removal affidavits, or other sources.

PRACTICE TIP:  Ask your client open ended questions, rather than questions which suggest the answers.  Some open ended questions include:  
Tell me about…
What it’s like to live here?
What was your visit with your mother like?
Where would you like to live?
Who would you like to live with?
What you would like for me to tell the judge?

An attorney must keep a client reasonably informed about the proceeding.  A child, like any client with a disability is entitled to be consulted to the extent possible and to be treated with attention and respect. There is seldom an ideal option available for a child in the child protective services system. Nevertheless, there will be some choices that are more attractive than others—and closer to the best interest of the child. Communication in such circumstances will involve “candid advice” presented “in as acceptable a form as honesty permits” to help the client obtain the best available outcome.

Pleadings filed by Attorney Ad Litem for Child

One of the first things an Attorney Ad Litem should do after being appointed to a case is to file an Answer.  The Family Code directs the Attorney Ad Litem to “participate in the conduct of the litigation to the same extent as an attorney for a party.”  The Attorney Ad Litem has rights to notice and participation in the process, among them the right to request a hearing or trial on the merits, consent or refuse to an interview of the child by another attorney and attend all legal proceedings.  The Attorney Ad Litem need not file an Answer to avoid a default judgment, however, filing an Answer communicates to all parties that the child’s representative intends to play a significant role in the SAPCR.  In addition to filing an answer, the Attorney Ad Litem should attend all hearings, call and examine witnesses, make objections and arguments and review and sign all orders.  

Other Motions

The child’s Attorney Ad Litem may also need to file other motions, such as Motions for Further Temporary Orders to request visitation, placement, or a particular type of medical or psychological examination, etc.

Protecting Children from Court

Direct testimony from children can be traumatic for the children.  The ABA Standards encourage a careful consideration of the issue, and that the attorney be bound by the client’s direction. Alternatives to in-court testimony should be explored when appropriate. Res gestae and other hearsay exceptions may permit the child’s words to be considered without the trauma of in-court confrontation.  A statute may make a child abuse victim’s statement, taken under specified circumstances, admissible.  A written choice of managing conservator may be a simple way to get an older child’s request before the court.  Caution should be exercised to make sure the child knows that the choice is not binding on the trial judge. A specialized deposition rule can restrict participation in a deposition of the child.  Remote televised testimony is permitted by rule and now technologically feasible in many courtrooms.  No live testimony can be compelled if an alternative under Chapter 104 is available and ordered by the court.  The court may, and should if the child’s medical condition warrants, order an alternative to live testimony.  However, the ABA standards also emphasize that “in most circumstances, the child should be present at significant court hearings, regardless of whether the child will testify.”

Preparing for and Representing a Child in Court – Key Issues

Client’s Placement

Many times children are initially placed in shelters or foster homes when they are removed from their families.  Sometimes they are placed with relatives.  The first meeting is usually a very emotional and uncomfortable meeting.  When you can communicate with your client, it is imperative to convey who you are and what your role is.  Many children will not understand why they need a lawyer or even what a lawyer is.  Others may understand very well.  It is also not advisable to interrogate the child about what brought the child into care.  Court Reports, Affidavits, discussions with the caseworker and other adults involved in the child’s life should provide enough of a picture so that the child need not be put through an in-depth discussion about the abuse or neglect at the first meeting.  Lawyers who represent children removed from their homes should argue for appropriate, individualized services in the least restrictive and intrusive, and most family-like environment possible.  Federal law requires DFPS to place a child in the least restrictive, most family-like setting available that can meet the child’s needs.  Federal law also requires that the child must be placed in close proximity to the parents’ home (unless proximity presents a risk to the child) and the child’s school.

PRACTICE TIP:  Counsel for the child should ensure that the issues of placing siblings together and placing children with relatives whenever safe and feasible are addressed as early as possible in the case, and enforce the Department’s legal duty to make prompt and reasonable efforts to keep siblings together and to find and assess relatives for placement.  Placing the child in familiar surroundings with familiar people can help minimize the trauma of detention, facilitate contact with extended family members, promote stability, and minimize changes in placement.

Counsel should become familiar with the laws and regulations governing the various funding sources for relative caregivers (including foster care funds, TANF, SSI benefits for children with disabilities, etc.), and help resolve funding issues so as to remove financial barriers for relatives who wish to care for a child.

Also, under the Fostering Connections Act, children have a right to remain in the school they attended at the time of removal, unless it is in the child’s best interests to change schools.  If the child changes schools, the Department must immediately enroll the child in the new school and provide the child’s education records to the new school.  See Appendix for explanation of Level of Care and Foster Care Reimbursement Rates

Evaluating Needs and Obtaining Services for your client

There is a cultural gap between practicing law and social work.  Recognizing this fact will diminish the frustration a lawyer may feel at dealing with a state agency in their attempt to obtain services for a child client.  Although lawyers are accustomed to operating in an adversarial atmosphere, CPS cases exist in a realm where an adversarial nature may in the long run fail to benefit your child client.  Showing respect and requesting a service for your client goes a lot further than demanding or threatening court action to obtain the service.  

Beyond a child’s basic needs (food, clothing, and shelter) there are behavioral and educational needs that must be met as well.  The availability of services depends, of course, on what providers exist in the community where the child resides.  Each child in the conservatorship of the state automatically qualifies for Medicaid.  Most medical and dental care is covered by Medicaid.  It also covers mental health, substance abuse counseling and rehabilitation, and Early Childhood Intervention programs that offer speech, occupational, and physical therapies for children.

PRACTICE TIP:  Counsel for children should make ongoing inquiries to ensure that their clients’ basic needs are met.  Does the child have access to healthy and appealing food?  Does the child have a quiet and comfortable place to sleep, and does he or she have trouble sleeping?  Does the child have appropriate space and materials to play, exercise, do homework, etc.? Counsel should also seek to identify special needs, including educational and developmental issues, chronic health conditions, emotional and behavioral issues, etc.  and advocate for services to meet those needs with the Department and through the court, if necessary.  If it appears that a child may have unidentified special needs, it is important to obtain an assessment by a qualified expert.  Counsel for children should also ask clients about their interests and activities.  Sports, music, arts, and other social and recreational activities can be crucial to a child’s well-being and healthy development.  Children should not be denied access to normal childhood experiences because they are in foster care.  

PRACTICE TIP:  If the child was not born in the United States, counsel should be aware of potential immigration issues, and of the child’s potential eligibility for Special Immigrant Juvenile Status [see Appendix].  Counsel should determine whether the client wishes to remain in the United States or return to his or her country of origin, and discuss with the client the potential immigration consequences of various placement and permanent plan options.

The ABA Standards require the child’s lawyer to “seek appropriate services” for the child and family that are consistent with the child’s wishes.  For a child with special needs, those services should “address the physical, mental, or developmental disabilities” of the child. ABA STANDARD C-5. Some services are available through the child protection agency itself, either directly or through its contracts with local service providers.

Visitation with Parents and Siblings

Restricting visitation by a parent in a CPS case is common for obvious reasons arising from the abuse or neglect that lead to CPS involvement.  However, as an Attorney Ad Litem, it is very important to not let CPS’s desire to punish or test the parent’s commitment to a child come at the child’s expense.  Visitation is very difficult to manage and is usually infrequent – perhaps only one hour per week under strictly supervised conditions.  For a child in a foster home or a shelter, this visit is the only way to retain ties with their family.  A child seeks assurance that the parents’ love continues even though the child no longer lives with the parents.  Children need to also know that their parents are alright.  For an infant or a toddler, the visitation is the only bonding experience they will have.  

The Attorney Ad Litem should seek to normalize these visits and increase their frequency when appropriate either through agreement of the parties or by seeking a court order.  Infants need short, frequent visits.  CASA volunteers or GALs may be able to transport or supervise a visit. Be sure to explore this possibility if visitation becomes difficult to schedule.  

Of course, a parent who fails to visit presents a different problem.  As the Attorney Ad Litem, you may be left to explain to a child why a parent did not come to a visit.  It is devastating for a child to wait for a week to see their mom for her not to show up.  The parent’s failure to show up may not diminish the child’s desire to see the parent, however, over time, it can affect the child in a very negative way and the Attorney Ad Litem and the caseworker must be mindful of further exposing the child to disappointment by attempting visitation week after week.  As an Attorney Ad Litem observing a visitation, it is important to note the interaction between the parent and child or children.  

PRACTICE TIP: Observe interaction between the parent and child, child and siblings, and siblings and parent and note:

         Affection
         Discipline
         Entertainment
         Joy
         Tears and why
         Stress
         Anxiety
         Inappropriate topics of discussion

A court may, in a pending suit to terminate the parent-child relationship, render an order denying a parent access to a child if the parent is indicted for criminal activity that constitutes a ground for terminating the parent-child relationship under T.F.C. §161.001.  The denial of this access shall continue until the date the criminal charges for which the parent was indicted are resolved and the court renders an order providing for access to the child by the parent.  

One very important relationship that is often overlooked in CPS cases is the sibling relationship.  Siblings should be placed together if possible and if safe to do so.  

PRACTICE TIP:  Counsel for children placed apart from siblings should carefully examine the Department’s justification for such placement.  Siblings should be separated only if necessary for their own safety or well-being.  Counsel should be alert to instances where siblings are separated merely because of the difficulty of finding a placement for all siblings together, or because one sibling is considered more adoptable than another, or because of normal sibling conflict that does not create a serious safety risk.

In 2009, the 81st Texas Legislature enacted legislation to make it easier for siblings to maintain contact once involved in the foster care system.   Texas Family Code §153.551 regarding a sibling’s suit for access, allows a sibling of a child who is separated from the child because of an action taken by the Department to request access to a child by an original SAPCR or a modification of a SAPCR.  This section was recently amended to allow a sibling to request access in an original SAPCR without regard to whether the appointment of a managing conservator is an issue in the suit.  The court shall order reasonable access to the child by the child’s sibling if the court finds that access is in the best interest of the child.  Texas Family Code §156.002(c) allows a sibling of a child who is separated from the child because of the actions of the Department to file a suit for modification of a SAPCR requesting access to the child in the court with continuing, exclusive jurisdiction.  

Working with the Department

When the child-client is placed in temporary foster care, working with the child protection agency becomes an essential part of the attorney’s advocacy. Identifying services to meet a client’s needs and pushing the bureaucracy to provide those services promptly may also be a frustrating experience for the child’s lawyer. To lawyers unaccustomed to dealing with a large bureaucracy, the Department may seem like a labyrinth, with internal rules and unstated agendas that appear to impede help to a child in its care. That labyrinth may be negotiated better, however, if the lawyer acknowledges the agency’s internal culture and learns to use that culture for the benefit of the client.

Recognizing the cultural gap between the professions of law and social work may diminish frustration and improve the lawyer’s effectiveness on behalf of the client. Among many other contrasts, the two professions reflect very different communication styles. The professional training of social workers encourages compromise, mediation and cooperation. Thus, they are often uncomfortable with the confrontational aspects of the adversary process and the assertiveness of lawyers. Perhaps to overstate the difference, lawyers confront and challenge; social workers share and empathize. Confronting a caseworker may yield a response that expresses the social worker’s irritation with the lawyer or the legal system, rather than the action sought by the confrontational lawyer. One useful technique is to approach the social worker in the same manner as approaching another party in mediation, identifying common interests, such as the duty of all parties to seek the best outcome for your child client, and couching the request in terms of those interests. For example, rather than confronting the caseworker with the fact that your client child rejects DFPS’s proposed outcome and you will fight it in court, you might want to convey the same information (the child’s serious opposition) as a problem that will need to be dealt with in order to make the ultimate placement stable and permanent. This is a goal DFPS should share.

Maintaining regular contact with a caseworker helps the lawyer to stay up-do-date on the needs of the client and on case developments. Regular communication with the caseworker also provides an opportunity to advocate on the child’s behalf with one of the most significant decision-makers in the child’s life. On the other hand, if a caseworker is reluctant or recalcitrant, knowledge of CPS’s responsibilities to the client, as detailed in the CPS Handbook, may help move the caseworker to do his or her job. If those steps fail, contacting the caseworker’s supervisor can be useful in dealing with difficult caseworkers.

One of the first things CPS will do once a child is taken into care is prepare a Family Plan of Service and develop a permanency plan for the child.  The Service plan should be prepared in consultation with the child’s parents, and must meet certain statutory requirements set out in Sections 263.101, 263.102, 263.103.  

The Child’s Attorney can use the Service Plan as a tool to advocate for their clients.  The Service Plan creates an outline of CPS’s and parent’s responsibilities and creates a useful framework to hold CPS accountable for making services available.  Service plans can be amended at anytime. Therefore, the plan does not have the force of contract, but the court may enforce it or change it.

Representation of Child in Previous Legal Matter

In some jurisdictions, the court or the attorney representing the Department may notify an attorney who represented a parent or child in a previous lawsuit filed by the Department.  If possible, once you receive notice that a new legal action is being taken regarding your client, try to be present at the ex parte proceeding.  Once a child’s removal has been approved or ordered, it becomes more difficult to get a child out of care.  This is a good opportunity to advocate for placement with a relative in lieu of foster care.  

Preparing for and Representing a Child in Court – The Hearings

Generally, the child’s attorney must develop a position for each court hearing, and become familiar with the way the judge conducts hearings.  For example, will hearsay be allowed or will the judge conduct a more formal hearing using rules of evidence and direct/cross to elicit information from the parties?  It is important to understand your appointed role – are you acting in the dual role of attorney and guardian ad litem or just as an attorney ad litem?   

The Adversary Hearing

In many jurisdictions, attorneys appointed to represent children in matters filed by the Department do not receive a great deal of notice of the appointment prior to the adversary or 14-day hearing.  The child’s attorney must find out as much information about the case as possible, meet with the client, and develop the child’s position, usually in just a matter of days.

Identifying Issues for the Adversary Hearing

Identifying Necessary Parties. Is there an absent parent or other person who is entitled to service of citation pursuant to § 102.009?  The court or district attorney may still use an affidavit of status from the mother to help to identify any alleged fathers, although the requirement for the form was eliminated by the 2007 legislature.

Identification of Parent-Child Relationships. Are the parents married? If not married, has paternity been established by a court order, and if so, where and when?  Divorced?  If divorced, when and where?  If a court has previously made final orders concerning these children, obtain copies of these orders. Review the provisions in the orders for conservatorship, visitation, and support. Have the parents signed and filed an Acknowledgment of Paternity (AOP) with the Bureau of Vital Statistics?  If so, obtain verification of the AOP or a copy of it to establish the parent-child relationship with the acknowledged father.

PRACTICE TIP:  If there is any indication that the child may have Native American heritage, the Indian Child Welfare Act [see Appendix] may apply.  Counsel for the child should seek to identify and resolve ICWA issues early in the case, to avoid notice defects and other errors that may cause delay in the resolution of the case.

Continuing, Exclusive Jurisdiction. When you prepare the Original Answer of the AAL, you should also prepare the “Inquiry on Court of Continuing Jurisdiction for a Child,” one for each child in the case, with the child’s name and date of birth as these appear in the Original Petition. Verify the accuracy of these forms and mail them to the Bureau of Vital Statistics. You will receive a confirmation letter indicating the court of continuing jurisdiction or indicating that there is no court of continuing jurisdiction. If a court of continuing jurisdiction is verified and it is your county, obtain a copy of the final orders concerning the children from the applicable clerk’s office. If the court of continuing jurisdiction is not your county, jurisdiction needs to be transferred to your county.

Identification of Potential Relative Placements. In § 262.201(e), the court is directed to “place a child removed from the custodial parent with the child’s noncustodial parent or with a relative of the child if placement with the noncustodial parent is inappropriate,” unless these placements are not in the best interest of the child.

The Department is required to perform background and criminal history checks of relatives or other designated individuals identified as potential caregivers by the parents in a Proposed Child Placement Resources form. This form should have been given to the parents at the time of removal as required by § 261.307(a)(2). The Department is directed to identify the most appropriate substitute caregiver and to complete a home study on that individual prior to the full adversary hearing. The Department is also authorized to place a child with the designated relative without a home study. TEX. FAM. CODE § 262.114(b).

Based on interviews with parents, the child and others, the AAL should also make every effort to discover appropriate relatives who may be willing to care for the child during the case. While a relative is a family member related by blood or marriage, a “symbolic relative” can be a longtime family friend, neighbor or teacher. Both relatives and symbolic relatives will be considered by the Department and the court as potential placements as long as they are appropriate and, preferably, already have a relationship with the child.

Conservatorship. Who should be appointed temporary managing conservator?  Who should be appointed a temporary possessory conservator?  Can the child be returned to the parent(s) if the Court orders services addressing the cause of the referral?

Placement. What type of placement is best for the child?  Should siblings be kept together or separated?  Will the child be placed in or near your county, or far away?

PRACTICE TIP:  If the child’s counsel anticipates any out-of-state placements, the Interstate Compact on the Placement of Children (ICPC) should be consulted.  In cases in which the ICPC applies, Courts are not free to make out-of-state placements in the absence of the approval of the state that will be receiving the child.  While the ICPC helps “receiving” States hold “sending” states financially responsible for the children they are sending, it adds months to the process of achieving placement or permanency for the child, even when the intended placement is with an appropriate non-custodial parent or blood relative, and in the child’s best interest. 

PRACTICE TIP:  If your client was previously placed in foster care, it is important to note that the Texas Legislature recently enacted Texas Family Code §262.114(c), which requires the Department to consider placing a child who has previously been in the managing conservator of the department with a foster parent with whom the child previously resided if the department determines that placement of the child with a relative or designated caregiver is not in the child’s best interest; and the place is available and in the child’s best interest.

Visitation. How often should the child and parents have contact, and for how long?  Where should the visits take place?  Should they be supervised or unsupervised?  If supervised, must the Department staff supervise or may a relative do so?  If siblings are separated, what orders should be made to ensure frequent contact?

Services to Parents. There are many services available to help families overcome the problems that led to the removal of the child. Some examples are parenting classes, counseling through local agencies or with private practitioners, treatment for alcohol or drug abuse, and homemaker services. Frequently, the Department may request a psychological evaluation of the parents to determine what services they might benefit from. Review the recommendations made by the Department in its court report for any helpful services that have been omitted.

Services to Child. Does the child need medical care? Counseling? An evaluation to determine need for developmental or counseling services?  Is the child receiving adequate education?  Does the child need some type of immediate crisis counseling?  Does the child have adequate clothing?  Is day care available?  Does the child have any personal effects he/she wants?

Child Support. Is either parent employed? Should either parent be ordered to pay child support? How much?  When should the payments begin?  If child support payments were ordered in a previous suit, e.g., divorce or Attorney General case, should the payments be redirected to the person or agency that now has responsibility of the child?

For indigent or near-indigent parents, reunification of the family may be better served by not having them pay child support to the state. The limited funds earned in these families may be spent on rehabilitation efforts, e.g., securing housing so that the children may be returned home promptly. In such cases should specific payments in lieu of child support be ordered?

Should a CASA Be Appointed?  Would it be helpful for a community volunteer to represent the children as their guardian ad litem? A CASA may be able to help develop the facts of the case, provide an additional resource for family reunification efforts, and will be able to testify about the interaction of the parents and the children at visits, which the AAL cannot do. If it is foreseeable that what is in the best interest of the child may not be what the child client wants, you can avoid ethical conflicts by remaining as AAL and asking that CASA be appointed in the guardian ad litem role.

At the Adversary Hearing

As is true in other temporary child custody hearings, the outcome of the Chapter 262 hearing sets a status quo for the litigation, one that is difficult to alter. Subsequent changes in this status quo will depend on how the case is progressing – or not progressing. Progress is often measured by the parties’ compliance with orders made at the Chapter 262 hearing. Consequently, the Chapter 262 hearing is a significant event in the case.

Continuances and “Renew and Extend” Orders

The Ex Parte Order signed by the judge who authorized removal of the children includes an order for the Chapter 262 hearing to occur at a specific time and date. It may be postponed or “continued” to a different date.

Lack of Service. The Chapter 262 hearing will have to be reset if the Department fails to obtain service of the hearing notice on at least one parent before the scheduled time of the hearing. When no parent has been served, the court will “renew and extend” the Ex Parte Order to a new date for the Chapter 262 hearing, usually 14 days hence. The “renew and extend” order is a new ex-parte order continuing the child in care and setting the new date.

Appointment of Counsel. In a termination case, an indigent parent who appears in opposition to a suit filed by the Department seeking either managing conservatorship or termination is entitled to a court-appointed attorney. When the court appoints a lawyer under those circumstances, the judge sometimes postpones the Chapter 262 hearing so that the lawyer may meet with the parent and prepare for the hearing. Occasionally, parents will request postponements in order to give them additional time to obtain a lawyer for themselves.

Negotiating Agreed Temporary Orders

In most cases, the parties agree to orders arising from Chapter 262 hearings. They may negotiate the agreement in advance or, more commonly, on the day of the hearing in the corridor outside the courtroom. Or, the parents may not actively contest the facts that lead to the lawsuit being filed, but they do not agree with the Department’s recommendations contained in the caseworker’s court report. Or, they may dispute some facts and some recommendations, but they do not demand a full-fledged contested hearing. Instead, they stand before the bench and make a presentation to the judge. Any party may demand a full contested hearing, complete with sworn-in witnesses and evidentiary rules.

Regardless of the form of the hearing, the basis of the negotiations both outside the courtroom and before the bench is the caseworker’s court report. The court report contains the Department’s recommendations for what the court should order at the Chapter 262 hearing. Depending on your jurisdiction, the judge reads the report before or during the Chapter 262 hearing. The caseworker should provide copies of the report to all parties before the hearing, although that may occur minutes before the hearing. You should review the report and recommendations and decide whether to support the recommendations and what, if any, other recommendations to make.

In addition, the recommendations in the court report form a starting point for negotiations. Before the hearing, the attorney should learn which recommendations the parents agree to and what issues they contest. The attorney should confer with the parties, the caseworker, and others involved in the case so that differences may be ironed out and alternatives explored. As an advocate solely for the child, the AAL stands in a powerful position to facilitate a settlement. While participating in these discussions, the attorney should document the names and addresses of the parties and attorneys who represent them, relatives or other witnesses, and other information that is gathered, such as the court and cause numbers of prior cases that may be known to the parents but not to the Department.

After preparing for the hearing, reviewing the court report, and participating in pre-hearing negotiations, the attorney should have in mind the presentation he or she will make to the judge.

Contested Hearings

If the parties are unable to reach an agreement and insist on a hearing, the court will hear evidence. Often, the court will ask the parties to return to court on a different day for the contested hearing, which may be conducted before a different judge. The issues for the hearing are set out in Family Code § 262.201. The work done in the days leading up the hearing should prepare the attorney to question witnesses and make argument at the Chapter 262 hearing.

Chapter 262 hearings look like any other hearings on temporary orders. Usually, after all parties announce ready, each party may make a brief opening statement outlining the position advocated and what the evidence is expected to show. Any stipulations of evidence or any agreements of the parties should be announced for the record at this time. The Department has the burden of proof and goes first, followed by the AAL and then the parents in most cases.

Although the other parties might cover all points with a witness, leaving the child’s attorney with no questions, this happens very rarely. Instead, the role that the child’s attorney takes at the hearing clearly reflects the necessity of having independent counsel for children. The child’s advocate may ask the questions that no other party, out of self-interest, can ask.

Some of the rules-of-thumb for advocacy may be disregarded. For example, the attorney for the child may ask any number of questions without knowing the answers to any of them. Indeed, because time for preparation has often been short, there may be any number of questions that the attorney has no answers for until the hearing occurs. Hearsay evidence may be very useful to the child’s advocate, particularly in situations where the only witnesses to alleged abuse are an infant and a parent who “takes the Fifth.”  Any error of the trial court at the Chapter 262 hearing cannot be corrected on appeal because the order made at the close of the hearing is temporary and is not subject to appeal.

Documenting the Judge’s Decision

In whatever form the hearing proceeds – agreed or contested – the judge will announce a decision at its conclusion.  A written court order may also be prepared following the hearing. When the attorney receives the proposed order, whether at court or later, he or she should compare the written order against notes made at the hearing to ensure that the order accurately reflects the judge’s oral orders.

The court, at the conclusion of each Chapter 262 hearing, sets the date and time for the next hearing in the case. Usually, this will be the status hearing, but in some cases the status hearing may be waived and the case proceed directly to the first permanency hearing.

The Motion for Further Orders:  If a matter arises that requires the court’s attention before the next scheduled hearing, you can file an appropriate motion for further orders and set it for hearing.  The better practice is to confer with all counsel and unrepresented parties regarding setting the hearing before you actually obtain a setting.  In some counties, the failure to confer is sanctionable under the local rules.

The Status Hearing

Following the adversary hearing, the next statutorily required hearing is the status hearing, also known as the “60-day hearing.”  It is set no later than 60 days after the date the court rendered a temporary order appointing the Department temporary managing conservator of the child(ren).
 
The status hearing is not a second opportunity to re-litigate the removal of the children or the findings made at the adversary hearing.  In the absence of any motions set for hearing, the status hearing focuses on the child’s status, ordering appropriate services for the family, making temporary orders as to conservatorship and placement, and visitation issues. 

Identifying Issues for the Status Hearing

If there are outstanding issues unresolved after the adversary hearing, the child’s attorney should address these issues in preparation for the status hearing, including:

    • Identifying Necessary Parties
    • Identification of Parent-Child Relationships
    • Continuing, Exclusive Jurisdiction
    • Identification of Potential Relative Placements
    • Conservatorship
    • Placement
    • Visitation
    • Services to Parents
    • Services to Child
    • Child Support
    • Appointment of CASA

The most important issue dealt with at the Status Hearing involves the Family Plan of Service.  Not later than the 45th day after the date the court renders a temporary order appointing the department as temporary managing conservator of a child under Chapter 262, the Department must file a service plan.

The Department shall consult with relevant professionals to determine the skills or knowledge that the parents of a child under two years of age should learn or acquire to provide a safe placement for the child.  The department shall incorporate those skills and abilities into the department’s service plans, as appropriate.  To the extent that funding is available, the service plan for a child under two years of age may require therapeutic visits between the child and the child’s parents supervised by a licensed psychologist or another relevant professional to promote family reunification and to educate the parents about issues relating to the removal of the child.
 
Service Plans. Has the department prepared a service plan for the family?  Is it realistic and not overly burdensome to the parents?  Does it adequately meet the needs of your client? Section 263.102 of the Texas Family Code sets forth what must be in the Service Plan. The plans are required to be in writing. They must be clear and understandable. In addition, they must be written in a language that the parents understand. The plan which is prepared by DFPS should be developed in conference with the parents, assuming of course, the parent’s cooperation.

The Service Plan must state what the ultimate goal will be either return to the parents, termination of parental rights, or continuation of the child’s care outside of the home.

The Service Plan must clearly state any deadlines under the plan and it should state the steps the parents should take in order to have the child returned from foster care. If the child is already home, but under DFPS’s supervision, the plan should clearly describe the steps necessary to keep the child at home. The plan should not only lay out the parent’s responsibility and the action that they need to take, but also the assistance that DFPS plans to provide to the parents. If the parents need to acquire new skills or knowledge that should be spelled out in the plan as well as what behavioral changes must be made to achieve the goals in the plan. If applicable, the plan should state the steps the parents need to take to make sure the child attends school.  The plan should also identify the individual at DFPS that the parents may contact.

The plan must include the statutory warning to parents about the consequences of non compliance with the plan.  Non-compliance with the plan can be grounds for termination. If the parents do not live in the same household and refuse to cooperate with each other and CPS in putting together the Service Plan, CPS has the discretion to choose one parent’s home over the other.
Federal law requires that CPS give all parents some family reunification services and adoption promotion and support services. Even if the plan is for termination, under Federal law, CPS must provide some family reunification services and if the plan is for the return of the child to the home, they will still provide adoption promotion and support services.

PRACTICE TIP:  The review of the plan takes place at the status hearing.  Raise any concerns you have about the plan.  Do the recommended services address the concerns that led to the Department’s involvement with the family?  Or, do you believe you should ask the Department to modify the plan of service?  Should you request that the court delete from the plan services that you do not believe relate to the issues, or are redundant of other services?  

Permanency Conferences.  The service plans are usually reviewed at meetings called Permanency Conferences (PC).  These are meetings that the Department is required to conduct, and for which all parties are provided notice and the opportunity to attend.  Attorneys who attend PCs often gain valuable information about their client’s compliance with the service plan, and possible changes in the long-term plan for the children. 

Permanency Hearings

Review hearings held during the time that CPS has placed the child in temporary foster care are called “permanency” hearings. 

Permanency

Achieving permanency for a child who is the subject of child protection litigation involves finding a safe, stable place where the child may grow up, with caretakers who have the legal responsibility for ensuring the child’s care. Lengthy stays in temporary foster care have been shown to create new problems for the child. A foster child lacks the security of knowing where and with whom the child will live, and for how long before another disruption. Absence of stability and permanency may impede the child’s emotional development. In making decisions about the child’s custodial environment, “[d]elay and indecision are rarely in a child’s best interests.” Both CPS and the courts play significant roles in securing permanency for a child in foster care.  

Child to Attend Permanency Hearings

The child shall attend each permanency hearing unless the court specifically excuses the child’s attendance.  The court is required to consult with the child in a developmentally appropriate manner regarding the child’s permanency plan, if the child is four years of age or older and if the court determines it is in the best interest of the child. 

Child’s Permanency Plan

The Department must prepare a permanency plan in any case where the Department has been appointed temporary managing conservator.  In 2009, the 81st Texas Legislature amended Texas Family Code §263.3025 to require the Department to include concurrent permanency goals consisting of a primary permanency goal and at least one alternate permanency goal.    Additionally, the 81st Texas Legislature enacted new Family Code §263.3026, which provides a laundry list of possible permanency plans for a child.  Texas fared poorly during a recent federal review regarding children in long-term care.  As the statute makes clear, placing a child permanent managing conservatorship of the department should be the last alternative considered:

(a) The Department’s permanency plan for a child may include as a goal:

         (1) the reunification of the child with a parent or other individual from whom the child was removed;

         (2) the termination of parental rights and adoption of the child by a relative or other suitable individual;

         (3) the award of permanent managing conservatorship of the child to a relative or other suitable individual; or

         (4) another planned, permanent living arrangement for the child.

(b) If the goal of the department’s permanency plan for a child is to find another planned, permanent living arrangement for the child, the department shall document that there is a compelling reason why the other permanency goals identified in Subsection (a) are not in the child’s best interest.

The Department must prepare a permanency plan for the child for whom the department has been appointed temporary managing conservator, and must provide a copy of the permanency plan report to the parent, among others, no later than the 10th day before the date of the initial permanency hearing.  

Family Group Conferences (FGC’s). FGC’s can be used in lieu of permanency conferences depending on the level of family involvement. Family Group Conferencing is similar in function to a permanency conference. Parents are encouraged to invite individuals they want present such as family and friends, for support, input, and feedback.  

The Department closely monitors the parent’s compliance with services, and if the parent does not make adequate progress by a certain point in the case, the Department will change its permanency plan from re-unification to adoption (termination of the parent-child relationship), permanent relative placement, or permanent managing conservatorship to the Department.  This change is usually first announced at the permanency conference or FGC.

The Department’s Permanency Hearing Court Report

The Department’s court report should include clear objectives for the family and specific timeframes for accomplishing those objectives.  Additionally, it should outline the services to be provided by CPS and describe actions the parents need to take to remedy the cause for intervention.  

Under T.F.C. §263.303, the Department has a duty to file with the court and provide to each party, the child’s attorney ad litem, the child’s guardian ad litem and the child’s volunteer advocate,  a permanency progress report at least 10 days prior to the date set for each permanency hearing.  The Permanency Progress Report shall include :

    • a description of efforts to locate and request service of citation, and
    • a description of each parents’ assistance in providing information necessary to locate an unserved party;
    • a recommendation that the suit be dismissed or continue;
    • an evaluation of the parties’ compliance with temporary orders and with the Service Plan;
    • an evaluation of whether the child’s placement in substitute care meets the child’s needs and if not recommended, other plans or services to meet the child’s needs or circumstances; and
    • a description of the permanency plan for the child and recommended actions necessary to ensure that a final order  consistent with that permanency plan, including the concurrent permanency goals contained in that plan, is    rendered before the date for dismissal of the suit under this chapter; and
    • with respect to a child 16 years of age or older, services needed to assist the child in transition to adult life;  and,
    • a summary of the child’s medical care since the last hearing.

Parents whose rights are being affected, the parent’s attorney, the attorney ad litem for the child and the guardian ad litem may all file a response to the progress report. If so, the response must be filed at least three days before the hearing.  It should be noted that the list of those entitled to file a response is not as expansive as those entitled to notice, to be present and to be heard.

The attorney for the child should take the opportunity to challenge aspects of the Department’s court report, if appropriate.  Counsel should consider whether the proposed objectives and time-frames are reasonable and appropriate.  The child’s placement should also be carefully considered.  Ask the parents and the child about placement options and consider what would be best for the family.  For example, explore whether the visitation orders are appropriate. Keep in mind that reunification is almost always the primary goal; visitation should occur frequently and be at a time and place that is likely to support the parent/child relationship.  

The court must determine in the initial permanency hearing whether the plan meets the child’s needs and is the most permanent option for the child.  Throughout the case, the child’s attorney should take positions that are consistent with the permanency goals for the child.  Before the permanency hearing, the child’s attorney should:

            • Review the agency’s permanency plan
            • Determine whether the placement contributes to the child’s development
            • Prepare to present alternative options for permanency when necessary
            • Where appropriate, prepare proposed orders for the court to direct the agency to satisfy reasonable efforts requirements (this could be an order for a specific service to the parent, investigation of a potential placement, etc)
            • Meet with the client in order to notify the court of the child’s wishes.

Initial Permanency Hearing

Not later than 180 days after the date the court renders a temporary order appointing the department as temporary managing conservator of a child, the court must hold a permanency hearing to review the status of, and permanency plan for, the child to ensure that a final order consistent with that permanency plan is rendered before the date for dismissal of the suit under this chapter. 

You are entitled to 10-days notice of the initial permanency hearing.  Typically, the parties get the original notice in open court, at the status hearing.

The Court is statutorily required to take specific actions at the initial permanency hearing.  Among them is to return the child to the parent if the parent can demonstrate the willingness and ability to provide the child with a safe environment; and the return of the child is in the child’s best interest.   The Court will review the following:

Child’s Placement.  If the Court does not find that returning the child to the parent(s) is in the child’s best interest, the Court may place the child with a person willing and able to provide the child with a safe environment if that is in the child’s best interest.  This could be a relative, symbolic relative, foster home, or if the child requires a more structured environment, a residential treatment center.  The Court will evaluate the Department’s efforts to identify relatives who could provide the child with a safe environment, if the child is not returned to a parent or another person entitled to service under chapter 102. 

Parent’s Compliance With the Service Plan.  The Court will again review the parents’ compliance with temporary orders and the service plan, to determine to what extent progress has been made in alleviating or mitigating the causes necessitating the placement of the child in foster care.
 
Permanency Plan.  Typically, CPS cases  progress on a dual track, called “concurrent planning.”  This usually consists of a permanency plan of reunification and either:  (1)termination/adoption, (2) permanent relative placement, or (3) permanent managing conservatorship to the Department without termination. 

Subsequent Permanency Hearings

A subsequent permanency hearing before entry of a final order shall be held not later than the 120th day after the date of the preceding permanency hearing in the suit.  The procedures for subsequent permanency hearings are the same as those set out for the initial permanency hearing.  The Court can set more frequent permanency hearings.  

Family Group Reconferencing.  FGCs may be used at the end of a case to voluntarily return a child to family when it can be demonstrated that the family’s resources will be marshaled to care for the child, such as providing child care while the parent is at work, or help for a disabled parent to care for a child.

If it has not become apparent sooner, by the second permanency hearing, you should know whether the Department will seek termination or permanent managing conservatorship of the child. Has the Department announced that the permanency plan for the child has been changed from reunification? 

NOTE:  Always ask what the permanency plan is for the child. Do not simply rely on the stated plan as indicia of where the case is headed.  What are the service providers reporting? Has progress been excellent, unimpressive, marginal, non-existent?  Has the parent obtained stable housing and maintained stable legal employment?  Is the parent clean and sober?  How extensive is the parent’s history? Is there a long standing history of drug use, prior termination of parental rights, persistent CPS referrals, criminal activity?  What kind of picture do you see developing?  Do the developing facts support the return of the child to the parent?

The court must consider return to the parent at each subsequent permanency hearings, if the parent is willing and able to provide the child with a safe environment AND return is in the best interest.  

Explore the possibility of a return and dismissal or a monitored return before the second permanency hearing held pursuant to Section 263.306.  Discuss the possibility of a transition plan to re-introduce the child into the parent’s life / home.  

The One-Year Deadline for Finality in CPS Cases

If the trial court has not commenced the trial on the merits or granted an extension, on the first Monday after the first anniversary of the date the Court rendered a temporary order appointing the Department as temporary managing conservator, the Court must dismiss the suit filed by the Department, that requests termination of the parent-child relationship or requests that the Department be named conservator of the child. 

The statutory dismissal date is not jurisdictional.  A party to the suit who fails to make a timely motion to dismiss the suit, waives the right to object to the Court’s failure to dismiss the suit.  A motion to dismiss is timely if the motion is made before the trial on the merits commences.
 
Extension of Dismissal Deadline.  Unless the court has commenced the trial on the merits, the court may not retain the suit on its docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the Department and that continuing the appointment of the Department as temporary managing conservator is in the best interest of the child.  If the court makes those findings, it may retain the suit on its docket for a period not to exceed 180 days after the time described by Subsection (a). 

If the Court extends the one-year deadline, it must render an order that:  (1) schedules a new date on which the suit will be dismissed if the trial on the merits has not commenced, which date must be not later than the 180th day after the time described by Subsection (a); (2) makes further temporary orders for the safety and welfare of the child as necessary; and (3) sets the trial on the merits on a date not later than the date specified under Subdivision (1).

If the court grants an extension but does not commence the trial on the merits before the date for dismissal under Subsection (b), the Court shall dismiss the suit.  The court may not grant additional extensions that extend the suit beyond the required date for dismissal under Subsection (b).   Nor may the parties extend the deadlines by agreement or otherwise.   

Motion to Dismiss. As with the original deadline, under the extended deadline, if a party fails to make a timely motion to dismiss the suit, she waives the right to object to the court’s failure to dismiss the suit. A motion to dismiss under this subsection is timely if made before the trial on the merits commences. 

Monitored Return of Child

The court may retain jurisdiction and not dismiss the suit or render a final order as required by §263.401 if the court renders a temporary order that: (1) finds that retaining jurisdiction is in the best interest of the child; (2) orders the Department to return the child to the child’s parent; (3) orders the Department to continue as the child’s temporary managing conservator; and (4) orders the Department to monitor the child’s placement to ensure that the child is in a safe environment.  The order must contain specific findings regarding the grounds for the order and schedule a new date, not later than the 180th day after the date the temporary order is rendered, for dismissal of the suit unless a trial on the merits has commenced. 

Removal of Child from Monitored Return

If a child placed with a parent under §263.403 must be removed from the home by the Department before the dismissal of the suit or the commencement of the trial on the merits, the Court shall, at the time of the move, schedule a new date for dismissal of the suit unless a trial on the merits has commenced.  The new dismissal date may not be later than the original dismissal date established under §263.401 or the 180th day after the date the child is moved under §263.403, whichever is later. 

If the placement back in the home extends beyond the 180 days, both state and federal law require a new Chapter 262 removal order.  If the child is removed from the home after 180 days of monitoring, in the absence of a new removal order, the suit is subject to dismissal. 

Achieving Legal Permanency for your Child-Client

Like the parent’s attorney, the AAL for the child should work the case as if trial on the merits is a likely option.  It is important to evaluate the evidence at the beginning of the case because of the impact it can have on the child’s permanency plan.   For example, if there is evidence of sexual abuse and criminal charges pending against one parent for the abuse, it could affect the permanency plan for the child.

Seeking Resolution through Mediation or Trial

A prompt resolution of the case is presumed to be in the best interest of the child, and all the various standards encourage a prompt resolution of the case and the use of alternative dispute resolution.  Mediation may be a particularly difficult phase of the case for the child’s attorney.  It is imperative the child’s attorney ad litem seek the child’s direction prior to the mediation.  As the “dual role” attorney, the lawyer will usually be expected to “sign” for the child; usually without the child’s presence at the mediation.  If a guardian ad litem has been appointed, mediation may bring out inherent conflicts between the guardian’s “best interest” position and the “expressed objectives” of the child.  Effective communications and appropriate advice and counsel for the child prior to mediation or final trial are essential. If the child’s testimony becomes necessary, the lawyer has a specific duty to prepare the child witness for trial, question the child appropriately, and defend the testimony against attack by showing it to be reliable and competent.

Practice Tips for Child’s Attorney in Mediation

  • Objective is to gain legal permanency for client
  • Explain what mediation is to your client in a manner that is appropriate for the age and competencies of your client
  • Ensure you understand what your client would like to happen with the outcome of the case
  • Does your client want to be adopted?
  • Have you thoroughly explained the difference between being in the legal conservatorship of the Department, a responsible adult or CPS versus being adopted?
  • Will your client allow you to agree to a settlement agreement that has the effect of terminating their parent’s rights
  • Do not give up the best interest factor and argue the best interest of the child if you are also serving in the dual role
  • Ask the judge to allow you to remain appointed until your client is placed in a permanent placement through adoption or legal guardianship with a suitable, responsible adult, not the Department.

PRACTICE TIP: In some cases, parents may request placement with a relative for the first time in mediation, after the child has been in foster care for many months.  If this occurs, counsel for the child may want to insist on very tight language in a MSA, e.g., requiring the parent to propose a specific relative or relatives; limiting the amount of time the named relative has to contact the caseworker and complete the initial paperwork and adoption education requirements; and requiring that the named relative pass an initial criminal background check.  

Trial

The child’s attorney plays a critical role during trial.  Often the child’s attorney has more knowledge of evidence specific to the child than any other attorney on the case.  It is incumbent on the child’s attorney to prepare for trial as if he carries the burden of proof.

Role of Child Attorney in Appeals of CPS Cases

An appeal of a final order rendered in a CPS termination case is governed by the rules for accelerated appeals in civil cases and the procedures provided in §263.405.  Although these cases are supposed to be accelerated, any appealed case remains at the appellate level for a significant period of time.  If you remain on the case after the final order of termination is entered, you may need to file motions or other legal documents at with your court of appeals.

Advocating at Placement Review Hearings

Continued appointment of a child’s attorney ad litem after a final legal resolution is reached  is not consistent across the state.  In some counties, the attorney is dismissed as part of the final order.  In others, the appointment continues until the child leaves foster care,  by aging out at age 18, being adopted,  by a modified decree granting a person, and not the Department, as permanent managing conservator.  

Depending on the final legal resolution on the case, placement review hearings may serve different purposes for children.  If the child enters the permanent managing conservatorship of the Department as a result of a court terminating the parents’ parent-child relationship, the Department should work to find an adoptive home and to seek an adoption consummation.  If the child enters the permanent managing conservatorship of the Department without an order terminating parental rights, or if the Department has been unable to locate an adoptive placement or the child chooses to not be adopted, the long-term plan for the child is likely long-term foster care.  In that case, the Department should address the child’s needs and ensure the child’s placement is appropriate.Representing a child after a final order is rendered is significantly different from representing a child under the temporary managing conservatorship of the Department.    For the most part, the big picture legal issues have been determined.  Despite this, children in permanent managing conservatorship of the Department often need an advocate at a time when court reviews become more infrequent and the attorney earlier appointed to represent the child has been dismissed from the case.   

PRACTICE TIP:  At all review hearings, counsel for the child should evaluate the services currently being provided to the child; if the child’s needs are not being met or new problems have arisen, the services plan may need to be updated.  Counsel should continue to seek alternatives to long-term foster care through return to a parent, or adoption or guardianship with a relative or symbolic relative.  Also, as the child approaches adulthood, counsel should ensure that a transition plan is in place, addressing post-secondary education and/or employment, housing, health care, etc.  

NOTE:   SEQ CHAPTER \h \r 1Many youth who remain in foster care until they turn eighteen, elect to return to the family that includes the parent or parents designated a perpetrator of abuse or neglect.  This election used to disqualify the youth from eligibility for transitional living services and other foster care benefits.  The 81st Legislature amended Tex. Fam. Code 264.121 to allow a youth who is at least 18 years of age to receive transitional living services, and other foster care benefits, while residing with a person who was previously designated as a perpetrator of abuse or neglect if the Department determines that despite the person’s prior history, the person does not pose a threat to the health and safety of the youth.  This eliminates a dilemma for courts considering post-PMC reunification as the child approaches majority.

PRACTICE TIP: In some cases, a youth will become a parent while still in foster care.  Counsel for teen parents must not only address issues regarding transition to adulthood as discussed above, but also ensure that their clients receive appropriate services to help them succeed as parents.  Counsel should consider requesting, e.g., placement with a supportive relative or in a specialized foster home for teen parents; childcare to enable the teen parent to attend school or job training; age-appropriate parenting classes, support groups, counseling, etc.

Materials regarding specific issues of youth in the conservatorship of DFPS are found in the appendices to this manual, including:

The Fostering Connections Act
Medical Care and Treatment
Services for Older Youth
Special Immigrant Juvenile Status
The Foster Care System and Placement Issues

logo

For more information please contact NACC.

___________________________________________________________________________________________________________________________________

References in manual :

Tex. Fam. Code § 107.001(2).
 Id. § 107.002(e).
 Id. § 107.003(1)(F).
 Id. §§ 107.004 & 107.005.
 Id. § 107.0045.
 Id. § 107.007(a).  
 Id. § 107.016.
 ABA Standard C-3
 Tex. Fam. Code §§ 107.003(1)(G), (H).
 ABA Standard D-12  
 See  Tex. Fam. Code § 107.003(1)(F).
 Id. § 107.016.
 Attorneys handling child abuse cases must review the American Bar Association Standards of Practices for Lawyers who Represent Children in Abuse and Neglect Cases (ABA Standards), which have been in effect since February 1996, and may be found and downloaded at:  http://www.abanet.org/family/reports/standards_abuseneglect.pdf
 Suggested amendments to the ABA standards, promulgated by the National Association of Counsel for  Children, adopted by the NACC in April, 1999 and promulgated as a proposed revised version of the ABA Standards, may be found and downloaded at:
http://naccchildlaw.yourmembership.com/?page=PracticeStandards#
 Attorneys appointed for children in private custody cases should review the “custody cases” standards, adopted by the American Bar Association in August 2003, which may be found and downloaded at:
 HYPERLINK “http://www.abanet.org/family/reports/standards_childcustody.pdf” http://www.abanet.org/family/reports/standards_childcustody.pdf.  The child custody standards are interesting as background information, but do not by their terms apply to abuse and neglect cases. Tex. Fam. Code § 107.004(a)(3). Tex. Fam. Code §§ 107.012, 107.011(a).
 Id. § 107.004(a)(2).
 Id. § 107.011(d).
 Id. § 107.015(c).
 Id. § 107.001(2).
 See ABA Standard A-1.
 Tex. Fam. Code § 107.004(b).
 Id. §107.003(3).
 Id. § 107.003(1), (F), (G).
 Id. § 107.003(1) (B)  .
 Id. § 107.004(a)(1).
 See ABA Standard B-4.
 Tex. Fam. Code § 107.004(a)(2).
     See  ABA Standard B-4 and the NACC Version relating to “Client preferences.”
 Tex. Fam. Code § 107.003(1)(C).
 Id. § 107.001(5).
 Id. § 107.001(4)
 Id. § 107.011(b).  
 For more information regarding CASA programs in Texas, please see  HYPERLINK “http://www.texascasa.org” www.texascasa.org
 Id. § 107.031(a).
 Id. § 107.031(b).
 Id. § 107.001(5).
  Standards for Local CASA/GAL Programs, (2006 Edition) (Approved by the National CASA Association Board of Directors March, 1997; revisions approved September 2002 & April 2006.
http://www.casanet.org/program-management/standards/0605_standards_for_local_programs_0053.pdf
 Tex. Fam. Code § 107.002(a)(1).
 Id. § 107.002(b)(1).  
 Id. § 107.002(b)(2), (3).
 Id. § 107.002(c).  
 Id. § 107.002(d).
 Id. § 107.002(e).
 Id. § 107.002(g).
 Id. § 107.002(h).
 Id. § 107.002(f).
 Id. § 107.011(d).
 Id. § 107.008(c).
 Id. § 107.0125(a).
 Id. § 107.0125(d).
 Id. § 107.001(4).  
 Id. § 107.022(1).
 Id. § 107.007(a).  
 Id. §§ 107.002(b), 107.004(a)(2).
 Id. § 107.0125(d).
 Id. § 107.0125(c).
 Id. § 107.0125(b).
 See ABA Standard B-4(4) (NACC version).
 Tex. Fam. Code § 107.001(1).
 Id. § 107.005(a).
 Id. § 107.005(b)(4).
 Id. § 107.017.
 Id. § 107.008(a)(1).  
 ABA Standard B-4 (1).  
 NACC Version B-4 (1).
 Tex. Fam. Code § 107.008(a)(2).  
 ABA Standard B-4(4) (strikeout and underline shows NACC proposal).
 Tex. Fam. Code § 107.008(a)(3).
 Id. § 107.008(c).
 Id. § 107.008(b).
 See ABA Standard B-4.
 See ABA Standard A-2.
 See ABA Standard B-4(3).
 ABA Standards (NACC Revised Version) B-4(2).
 Tex. Fam. Code § 107.001(2).  
 Tex.Disciplinary R. Prof’l Conduct 1.02.
 Tex.Disciplinary R. Prof’l Conduct 2.01.
 Tex. Fam. Code § 107.001(2).
 ABA Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases (NACC Revised Version) B-4.
 Tex.Disciplinary R. Prof’l Conduct 2.01.
 Tex.Disciplinary R. Prof’l Conduct 1.02.
 ABA Standard B-4(3).
 See  ABA Standard (NACC Revised Version) B-4(4).
 See Tex. Fam. Code § 261.20.
 Tex. Hum. Res. Code § 40.005(e).
 See Tex. Fam. Code § 264.613.
 Id. § 107.007(a).  
 Id. § 107.007(b).
 Id. § 261.101.
 Id. § 261.101(b).
 Id. § 261.101(c).
 Id. § 261.109.  
94 Id. § 261.202.
 Id. § 107.008(a)(2).
 ABA Standard B-4 (3), cmt.
 Tex. Fam. Code § 107.009(a).
 Id. § 107.009(b).
  Delcourt v. Silverman, 919 S.W.2d 777 (Tex.App.—Houston [14th Dist.] 1996, writ denied).
     Tex. Fam. Code § 107.0045.
     Id. § 107.001(2) (emphasis added).
     Id. §§ 107.003(1)(A) & 107.007(a)(4).  
 See Texas Center for Legal Ethics and Professionalism, web site at: http://www.txethics.org/reference.asp for an on-line version of the Rules and Comments (available for viewing without paying membership fees).
     Tex. Fam. Code § 107.0045.
     Id. § 107.003(1)(A)(i); See also ABA Standard B-4.
     Id. § 107.003(1) (A) (ii) & (iii); ABA Standard C-2 (4) & (6).
     Tex. Fam. Code § 107.003(1)(D); ABA Standard C-2.
 Tex. Fam. Code § 107.003(1) (E); ABA Standard C-2 (1), (2).
     Tex. Fam. Code § 107.006(a).  
     Id. § 107.006(c).  
     ABA Standard C-1.
     Tex. Fam. Code § 107.004(d).
     Id. § 107.003(1)(a)(i).  
     Id. § 107.004(e).
     Id. § 107.004(d).
 See Anne Graffam Walker, Ph.D., Handbook on Questioning Children, A Linguistic Perspective, 2d Edition, ABA Center on Children and the Law, 1999. (Available from the ABA).
     Tex.Disciplinary R. Prof’l Conduct 1.03.
     Tex.Disciplinary R. Prof’l Conduct 2.01.
     Tex. Fam. Code § 107.003.  
     Id.  
     Id.
     ABA Standard D-6.  
     Tex. R. Evid. 801.  
     Tex. Fam. Code §§ 104.006, 104.002.  
     Id. § 153.008.  
     Id. § 104.003.
     Id. § 104.004 .
     Id. § 104.005(a).
     Id. § 104.005(b).
     ABA Standard D-5.
 See America’s Children, Still at Risk, American Bar Ass’n, Steering Ctte. On the Unmet Legal Needs of Children, at 83 (American Bar Association, 2001).
     Social Security Act, 42 U.S.C. §§622, 627, 675; CPS Handbook, Appendix 6311-B.
 Id.
     ABA Standard C-4.
     Tex. Fam. Code § 161.2011(c).
 TEX. FAM. CODE §153.551(b).
 Id. §153.551(c).
     Tex. Fam. Code § 263.104 (a).
 See former § 161.105 (repealed 2007).  Tex. Fam. Code § 262.114(a).
  Id. § 162.101et. seq.
  ICPC, § 161.102, Article III, subsection (d).
 Tex. Fam. Code § 107.013.
 Id. § 263.201.
     Id. § 263.101; see also Id. §§263.102-103 (regarding service plan contents, signing & taking effect).
     Id. §§ 263.102(f).
 Id. §§ 263.102(g)
 Id. § 263.102(b).
 Id. § 161.001(o).
  See id. § 263.104 (amended service plan).
  Id. § 263.301, intro. cmt.
 Comment, AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES B-5 (1996).
     Id. §§ 263.302.
 Senate Bill 939, Section 4, 81st Texas Legislature, 2009.
 Id., Section 5.
 Id. § 263.3025.
 Id. § 263.303.
 Id. § 266.007.  
     Id. § 263.303(c)  
     Id
 Id. § 263.304.
 Id. § 263.301.
 See id. § 263.306.
 Id.
 Id. § 263.306.
 Id.
 Id. § 263.306(b)(1)(D).
 Id. § 263.305.
 Id. § 263.306.
 Id. § 263.305.  
 Tex. Fam. Code Ann §§ 263.306, 263.307.
 Tex. Fam. Code § 263.401(a) [effective for SAPCRs filed on or after June 15, 2007, only].
  In re Department of Family & Protective Services, 273 S.W.3d 637 (Tex. 2009)(orig. proceeding)
 Id. § 263.402(b) [effective for SAPCRs filed on or after June 15, 2007, only].
 Id. § 263.401(b). [effective for SAPCRs filed on or after June 15, 2007, only].
 Id. [Effective for cases filed on or after June 15, 2007, only].
 Id. § 263.401(c). [Effective for cases filed on or after June 15, 2007, only].
 Id.
 Id. § 263.402(a).
 Id. § 263.402(b). [Effective for cases filed on or after June 15, 2007, only].
 Id. § 263.403(a).
 Id. § 263.403(b). [Effective for cases filed on or after June 15, 2007, only].
 Id. § 263.403.  [Effective for cases filed on or after June 15, 2007, only].
  Id. § 263.403, cmt.
 See ABA Standard C-6.
     See ABA Standards D-7, D-8 and D-9.
  TEX. FAM. CODE §263.405.
 TEX. FAM. CODE § 264.121(d), as amended by H.B. 1912, 81st Leg., R.S. (2009) [Effective September 1, 2009].  

 

 

ShareEmail this to someonePrint this page

Permanent link to this article: http://www.ppcforchange.com/texas-attorneys-representing-children/