Representation of Children in Child Abuse and Neglect Proceedings - Texas

Making The Appointment

Citation: Family Code §§ 107.001; 107.011; 107.012

In a suit filed concerning alleged abuse or neglect of a child, the court shall appoint a guardian ad litem (GAL) to represent the best interests of the child immediately after the filing of the petition but before the full adversary hearing. The court shall also appoint an attorney ad litem to represent the interests of the child to ensure adequate representation of the child.

A GAL is a person appointed to represent the best interests of a child. Effective September 1, 2021, the term includes the following:

• A volunteer advocate
• An adult having sufficient competence, training, and expertise to represent the best interests of the child
• An attorney ad litem appointed to serve in the dual role of attorney ad litem and GAL

The court may not appoint a GAL if an attorney is appointed in the dual role unless the court appoints another person to serve as GAL for the child and restricts the role of the attorney to acting as an attorney ad litem for the child. The court may appoint an attorney to serve as GAL for a child without appointing the attorney to serve in the dual role only if the attorney is specifically appointed to serve only in the role of GAL.

In order to comply with the mandatory appointment of a GAL and attorney ad litem, the court may appoint an attorney to serve in the dual role. If the court appoints an attorney to serve in the dual role, the court may at any time during the pendency of the suit appoint another person to serve as GAL for the child and restrict the attorney to acting as an attorney ad litem for the child.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Family Code §§ 107.031; 264.601

In a suit alleging child abuse or neglect, the court may appoint a charitable organization composed of volunteer advocates whose charter mandates the provision of services to allegedly abused and neglected children or appoint an individual who has received the court's approved training regarding abused and neglected children and who has been certified by the court to appear at court hearings as a GAL or as a volunteer advocate for the child.

A court-certified volunteer advocate appointed under this section may be assigned to act as a surrogate parent for the child, as provided by 20 U.S.C. § 1415(b), if the following apply:

• The child is in the conservatorship of the Department of Family and Protective Services.
• The volunteer advocate is serving as GAL for the child.
• A foster parent of the child is not acting as the child's parent under § 29.015, Education Code.
• The volunteer advocate completes a training program for surrogate parents that complies with minimum standards established by rule by the Texas Education Agency within the time specified by § 29.015(b), Education Code.

'Volunteer advocate program' means a volunteer-based, nonprofit program that does the following:

• Provides advocacy services to abused or neglected children with the goal of obtaining a permanent placement for a child that is in the child's best interests
• Complies with recognized standards for volunteer advocate programs

Qualifications/Training

Citation: Family Code §§ 107.001; 107.003; 107.004

An attorney ad litem provides legal services to a child. He or she owes the child undivided loyalty, confidentiality, and competent representation.

An attorney ad litem appointed to represent a child must be trained in child advocacy or have experience determined by the court to be equivalent to that training. The attorney ad litem shall, as appropriate, considering the nature of the appointment, 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.

An attorney ad litem appointed for a child shall complete at least 3 hours of continuing legal education relating to representing children in child protection cases as soon as practicable after the attorney ad litem is appointed. An attorney ad litem is not required to comply with this subsection if the court finds that the attorney ad litem has experience equivalent to the required education. An attorney who is on the list maintained by the court as being qualified for appointment as an attorney ad litem for a child in a child protection case must complete at least 3 hours of continuing legal education relating to the representation of a child each year before the anniversary date of the attorney's listing.

The required continuing legal education must be lowcost and available to persons throughout the State, including on the internet provided through the State Bar of Texas, and focus on the duties, procedures, and best practices in representing a child in a child protection proceeding.

Specific Duties

Citation: Family Code § 107.003; 107.004; 107.008

An attorney ad litem shall do the following:

• Within a reasonable time after the appointment, interview the following:
  • The child in a developmentally appropriate manner if the child is age 4 or older
  • Each person who has significant knowledge of the child's history and condition, including any foster parent
  • The parties to the suit
• Seek to elicit the child's expressed wishes
• Consider the impact on the child in presenting the child's wishes to the court
• Investigate the facts of the case
• Review copies of relevant records relating to the child
• Receive copies of pleadings and notices of hearings
• Participate in the conduct of the litigation to the same extent as an attorney for a party
• Participate in any agency staffing concerning the child
• Attend all legal proceedings in the suit

In addition, an attorney ad litem shall do the following:

• Review the medical care provided to the child
• In a developmentally appropriate manner, seek to elicit the child's opinion on the medical care provided
• For a child who is at least age 16, do the following:
  • Advise the child of the child's right to request the court to authorize the child to consent to the child's own medical care
  • Ascertain whether the child has received a certified copy of the child€™s birth certificate, a social security card or a replacement social security card, a driver€™s license or personal identification certificate, and any other personal document the Department of Family and Protective Services determines appropriate
  • Seek to elicit the name of any adult who could be a relative or designated caregiver for the child and immediately provide the names of those individuals to the department

The attorney shall advise the child, represent the child's expressed wishes, and follow the child's wishes during the course of litigation if he or she determines that the child is competent to understand the nature of an attorney-client relationship. The attorney ad litem shall meet before each court hearing with the child if the child is at least age 4 or with the person with whom the child ordinarily resides if the child is younger than age 4.

If the child is not present at the court hearing, the attorney must file a written statement with the court indicating that the attorney has met with the child as required. The meeting must take place:

• At a sufficient time before the hearing to allow the attorney to prepare for the hearing in accordance with the child's expressed objectives of representation
• In a private setting that allows for confidential communications between the attorney and the child or individual with whom the child ordinarily resides, as applicable

Before each scheduled hearing, an attorney ad litem shall determine whether the child's educational needs and goals have been identified and addressed.

The attorney may determine that the child cannot meaningfully express his or her wishes due to the following:

• The child lacks sufficient maturity to understand and form an attorney-client relationship.
• Despite appropriate counseling, the child continues to express wishes that would be seriously injurious to the child.
• For any other reason, the child is incapable of making reasonable judgments.

When this is the case, the attorney may present to the court a position that he or she determines will serve the best interests of the child.

If a GAL has been appointed for the child, an attorney ad litem who determines that the child cannot meaningfully express his or her wishes shall do the following:

• Consult with the GAL and present to the court the GAL's recommendations regarding the best interests of the child
• Present to the court a position that the attorney feels will serve the best interests of the child

How the Representative Is Compensated

Citation: Family Code § 107.015

An attorney appointed to serve as an attorney ad litem for a child or an attorney in a dual role is entitled to reasonable fees and expenses in the amount set by the court to be paid by the parents of the child unless the parents are indigent.

If the court determines that one or more of the parties are able to defray the fees and expenses of an attorney ad litem or GAL for the child, as determined by the reasonable and customary fees for similar services in the county of jurisdiction, the fees and expenses may be ordered paid by one or more of those parties, or the court may order one or more of those parties, prior to final hearing, to pay the sums into the registry of the court or into an account authorized by the court for the use and benefit of the payee on order of the court. The sums may be taxed as costs to be assessed against one or more of the parties.

If indigence of the parents is shown, an attorney ad litem appointed to represent a child shall be paid from the general funds of the county according to the fee schedule. The court may not award attorney ad litem fees against the State, a State agency, or a political subdivision of the State, except as provided by this subsection.

A person appointed as a GAL or attorney ad litem shall complete and submit to the court a voucher or claim for payment that lists the fees charged and hours worked by the GAL or attorney ad litem.