Caveat: This chapter does not address in detail suits involving governmental agencies, although the relevant statutes are interwoven with provisions regarding such suits. An attorney in a suit brought by a governmental agency will need to refer to the statutes for additional guidelines for ad litems.
§ 13.1Court-Ordered Representatives Generally
Appointment of a representative is considered a fundamental due-process requirement in certain family law–related proceedings. Generally, appointment of ad litems for a child and an indigent parent is mandatory in termination cases brought by the state of Texas and for respondents in certain circumstances in which citation has not been personally served. In other cases, a representative is appointed to safeguard the best interests of children involved in suits involving conservatorship, termination, or adoption. The court may appoint a representative on its own motion or on the motion of any party. See Gonzalez v. Gonzalez, 26 S.W.3d 657, 658 (Tex. App.—San Antonio 2000, no pet.).
Family Code section 107.001 provides the following definitions pertaining to court-ordered representation. See Tex. Fam. Code § 107.001.
Amicus attorney: an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is 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.
Attorney ad litem: 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.
Developmentally appropriate: structured to account for a child’s age, level of education, cultural background, and degree of language acquisition.
Dual role: the role of an attorney who is appointed under Family Code section 107.0125 to act as both guardian ad litem and attorney ad litem for a child in a suit filed by a governmental entity.
Guardian ad litem: a person appointed to represent the best interests of a child. The term includes a volunteer advocate from a charitable organization described by subchapter C of Family Code chapter 107 who is appointed by the court as the child’s guardian ad litem; 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; an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or an attorney ad litem appointed to serve in the dual role.
Although Texas law is clear in defining the roles and responsibilities of court-ordered representatives in Texas family law cases, the definitions contained in the American Bar Association Standards of Practice for Lawyers Representing a Child in Abuse and Neglect Cases and listed below are also helpful.
Child’s attorney: A lawyer who provides legal services for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client.
Lawyer appointed as guardian ad litem: A lawyer appointed as guardian ad litem for a child is an officer of the court appointed to protect the child’s interests without being bound by the child’s expressed preference.
Sections A–1, A–2, American Bar Association Standards of Practice for Lawyers Representing a Child in Abuse and Neglect Cases, are available at www.americanbar.org/content/dam/aba/administrative/family_law/committees/standards_abuseneglect
.pdf.
The National Association of Counsel for Children has established the NACC Recommendations for Representation of Children in Abuse and Neglect Cases, available at https://naccchildlaw.app.box.com/s/vsg6w5g2i8je6jrut3ae0zjt2fvgltsn.
The American Academy of Matrimonial Lawyers (AAML) has also developed guidelines based on whether a child is impaired or unimpaired. There is a rebuttable presumption that children over twelve years of age are unimpaired and children under twelve years of age are impaired. It is the child’s attorney who makes this determination, not the court. Under the AAML standards, guardians ad litem do not make recommendations or closing arguments. If they offer evidence or a report, they are sworn as witnesses and subject to cross-examination. See Standards Relating to the Appointment of Counsel and Guardians Ad Litem for Children in Custody or Visitation Proceedings, 9 J. Am. Acad. Matrim. Law. 1 (1992).
§ 13.3Mandatory Appointment of Representatives
In a suit filed by a governmental entity for the termination of the parent-child relationship or for the appointment of a conservator, a guardian ad litem must be appointed by the court immediately after the filing of the petition but before a full adversary hearing. Tex. Fam. Code § 107.011(a). The guardian ad litem appointed for a child may be a volunteer advocate; an adult having sufficient competence, training, and expertise to represent the best interests of the child; or an attorney appointed in the dual role. Tex. Fam. Code § 107.011(b). Further provisions regarding guardian ad litem appointments are contained in Family Code section 107.011(c)–(e).
Immediately after the filing of the suit but before the full adversary hearing, the court must appoint an attorney ad litem to represent the child’s interests in a suit filed by a governmental entity requesting termination or to be named a conservator of a child. Tex. Fam. Code § 107.012.
To comply with the mandatory appointment of a guardian ad litem under Family Code section 107.011 and the mandatory appointment of an attorney ad litem under Family Code section 107.012, the court may appoint an attorney to serve in the dual role. Tex. Fam. Code § 107.0125(a). Section 107.0125 contains further provisions regarding appointments in such cases.
In a suit filed by a governmental entity in which termination of the parent-child relationship or the appointment of a conservator for a child is requested, the court shall appoint an attorney ad litem to represent the interests of (1) an indigent parent of a child who responds in opposition to the termination or appointment, (2) a parent served by citation by publication, (3) an alleged father who failed to register with the paternity registry and whose identity or location is unknown, and (4) an alleged father who registered with the paternity registry but on whom the petitioner’s attempt to personally serve citation has been unsuccessful. Tex. Fam. Code § 107.013(a). These appointments are mandatory and must be made early in the proceeding. Otherwise, reversible error is likely to be found. Chapman v. Chapman, 852 S.W.2d 101, 102 (Tex. App.—Waco 1993, no writ); Nichols v. Nichols, 803 S.W.2d 484, 485–86 (Tex. App.—El Paso 1991, no writ). If a parent in such a suit is not represented by an attorney at the parent’s first court appearance, the court must inform the parent of the right to be represented by an attorney and, if the parent is indigent and appears in opposition to the suit, the right to an attorney ad litem appointed by the court. Tex. Fam. Code § 107.013(a–1); In re J.F., 589 S.W.3d 325, 333–36 (Tex. App.—Amarillo 2019, no pet.).
If an alleged father for whom an attorney ad litem has been appointed is adjudicated to be a parent of the child and is determined by the court to be indigent, the court may appoint the attorney ad litem to continue to represent the father’s interests as a parent. Tex Fam. Code § 107.0132(c).
The court must require a parent claiming indigence that would require appointment of an attorney under Family Code section 107.013(a) to file an affidavit of indigence before the court may conduct a hearing to determine the parent’s indigence. The court may consider additional evidence at the hearing and, if it determines the parent is indigent, must appoint an attorney ad litem to represent the parent. Tex. Fam. Code § 107.013(d). Once the court has determined that a parent is indigent, the parent is presumed to remain indigent for the duration of the suit and any appeal unless the court, after reconsideration on the motion of the parent, the parent’s attorney ad litem, or the attorney representing the governmental entity, determines that the parent is no longer indigent due to a material and substantial change in the parent’s financial circumstances. Tex. Fam. Code § 107.013(e).
In certain circumstances in a suit for termination that is not filed by a governmental agency, the court must appoint an amicus attorney or an attorney ad litem under Tex. Fam. Code § 107.021(a–1). See section 13.4 below.
An attorney ad litem must be appointed to defend a suit on behalf of the defendant when service of citation has been made by publication under rule 109 of the Texas Rules of Civil Procedure and no answer or appearance has been made within the prescribed time. Tex. R. Civ. P. 244. Appointment of an attorney ad litem under rule 244 is also required when other substituted service in lieu of publication has been authorized. Tex. R. Civ. P. 109a. However, in a suit for dissolution of marriage, the court may dispense with the appointment of an attorney ad litem if the petitioner or the petitioner’s attorney makes an oath that there are no children of the marriage under eighteen years of age and that the spouses accumulated no appreciable amount of property during the marriage. Tex. Fam. Code § 6.409(e).
If in a parentage suit the court denies a motion for genetic testing, a child who is a minor or is incapacitated must be represented by an amicus attorney or attorney ad litem. Tex. Fam. Code § 160.608(c).
In a parentage proceeding, the court shall appoint an amicus attorney or attorney ad litem to represent a child who is a minor or is incapacitated if the child is a party or the court finds that the interests of the child are not adequately represented. Tex. Fam. Code § 160.612(b).
The court shall appoint an amicus attorney or an attorney ad litem to represent the interest of a petitioner for removal of disabilities of minority at the hearing. Tex. Fam. Code § 31.004.
§ 13.4Discretionary Appointment of Representatives
In a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, the court may appoint one of the following: an amicus attorney, an attorney ad litem, or a guardian ad litem. Tex. Fam. Code § 107.021(a). Because the trial court has discretion whether to appoint an amicus attorney, such discretion also applies regarding whether to remove an amicus, absent the demonstration of some situation that would create a ministerial duty to remove that amicus attorney. In re Burrows, No. 06-17-00014-CV, 2017 WL 1031454 at *2 (Tex. App.—Texarkana Mar. 17, 2017, orig. proceeding) (mem. op.) (insufficient evidence of conflict that would require removal of amicus).
In a suit requesting termination of the parent-child relationship that is not filed by a governmental entity, the court shall, unless the court finds that the interests of the child will be represented adequately by a party to the suit whose interests are not in conflict with the child’s interests, appoint an amicus attorney or an attorney ad litem. Tex. Fam. Code § 107.021(a–1). In a termination proceeding filed by one parent against the other parent, the court must appoint either an amicus attorney or an attorney ad litem for the child absent a finding that the party seeking termination can adequately represent the minor child’s interests. Failure to appoint an amicus attorney or an attorney ad litem in such a situation may be raised for the first time on appeal. In re K.M.M., 326 S.W.3d 714 (Tex. App.—Amarillo 2010, no pet.).
In determining whether to make an appointment under Family Code section 107.021, the court shall give due consideration to the ability of the parties to pay reasonable fees to the appointee and balance the child’s interests against the cost to the parties that would result from an appointment by taking into consideration the cost of available alternatives for resolving issues without making an appointment. Tex. Fam. Code § 107.021(b)(1); see Hutchins v. Donley, No. 11-12-00204-CV, 2014 WL 2767122, at *4 (Tex. App.—Eastland June 12, 2014, no pet.) (mem. op.). The court may make an appointment only if the court finds that the appointment is necessary to ensure the determination of the best interests of the child, unless the appointment is otherwise required by the Family Code, and may not require that a person appointed serve without reasonable compensation for the services rendered by the person. Tex. Fam. Code § 107.021(b)(2), (b)(3).
The court may appoint an attorney to serve as an attorney ad litem for a person entitled to service of citation in a suit if the court finds that the person is incapacitated. The attorney ad litem shall follow the person’s expressed objectives of representation and, if appropriate, refer the proceeding to the proper court for guardianship proceedings. Tex. Fam. Code § 107.010.
In a suit filed by a governmental agency under Code chapter 262, the court may appoint an attorney ad litem to represent the interests of a parent from the time the court issues a temporary restraining order or attachment of the child until the court determines whether the parent is indigent before commencement of the full adversary hearing. Tex. Fam. Code § 107.0141(a). An attorney ad litem who identifies and locates the parent shall inform the parent of the right to representation and the appointment of an attorney ad litem if the parent is indigent; help the parent make an indigence claim, if applicable; and assist the parent in preparing for the full adversary hearing. Tex. Fam. Code § 107.0141(c).
Continuing Representation after Judgment: In a suit filed by a governmental entity in which termination of the parent-child relationship or appointment of the entity as conservator of the child is requested, an order appointing the Texas Department of Family and Protective Services as the child’s managing conservator shall provide for the continuation of the appointment of the guardian ad litem or attorney ad litem for the child, or an attorney appointed to serve in the dual role, as long as the child remains in the conservatorship of the department. If both an attorney ad litem and a guardian ad litem have been appointed, the court may provide for the continuation of both appointments as long as the child remains in the conservatorship of the department. Tex. Fam. Code § 107.016(1).
Although section 107.0161 of the Texas Family Code states that the continued appointment of a guardian or attorney ad litem is discretionary for children committed to or released from the Juvenile Justice Department, since the amendment to Code section 107.016(1) makes the continuation of the appointment mandatory, section 107.0161 is no longer relevant. See Tex. Fam. Code § 107.0161.
In a suit filed by a governmental entity in which termination of the parent-child relationship or appointment of the entity as conservator of the child is requested, an attorney appointed to serve as an attorney ad litem for a parent or an alleged father continues to serve in that capacity until the earliest of the date (1) the suit affecting the parent-child relationship is dismissed, (2) all appeals in relation to any final order terminating parental rights are exhausted or waived, or (3) the attorney is relieved of the attorney’s duties or replaced by another attorney after a finding of good cause is rendered by the court on the record. Tex. Fam. Code § 107.016(3).
§ 13.5Prohibited Appointment of Representatives
The court may not appoint a person to serve as an amicus attorney in a suit filed by a governmental entity. Tex. Fam. Code § 107.017. In a suit other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, the court may not appoint an attorney to serve in the dual role or a volunteer advocate to serve as guardian ad litem for a child unless the training of the volunteer advocate is designed for participation in suits other than suits filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child. Tex. Fam. Code § 107.022.
§ 13.6Rights, Powers, and Duties of Guardian Ad Litem
The law is clear that a guardian ad litem appointed for a child is not a party to the suit but may conduct an investigation to the extent that the guardian ad litem considers necessary to determine the best interests of the child and may obtain and review copies of the child’s relevant medical, psychological, and school records. See Tex. Fam. Code § 107.002(a). The guardian ad litem is entitled to access to the child and to information about the child, as described in section 13.16 below.
Within a reasonable time after his appointment, the guardian ad litem must interview (1) the child in a developmentally appropriate manner, if the child is four years old or older; (2) the parties to the suit; and (3) each person who has significant knowledge of the child’s history and condition, including educators, child welfare service providers, and any foster parent of the child. The guardian ad litem must also seek to elicit the child’s expressed objectives in a developmentally appropriate manner, consider the child’s expressed objectives without being bound by them, encourage settlement and alternative dispute resolution, and perform any specific task the court directs. Tex. Fam. Code § 107.002(b).
The guardian ad litem is entitled to (1) receive a copy of each pleading or other paper filed in the case; (2) receive notice of each hearing in the case; (3) participate in case staffings by the Department of Family and Protective Services concerning the child; (4) attend all legal proceedings in the case but not to 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; (6) explain the basis for opposition to the agreed order if the guardian ad litem does not agree to the terms of the proposed order; (7) have access to the child in the child’s placement; (8) be consulted and provide comments on decisions regarding placement, including kinship, foster care, and adoptive placements; (9) evaluate whether the child welfare services providers are protecting the child’s best interests regarding appropriate care, treatment, services, and all other foster children’s rights listed in Code section 263.008; (10) receive notification regarding and an invitation to attend meetings related to the child’s service plan and a copy of the plan; and (11) attend court-ordered mediation regarding the child’s case. Tex. Fam. Code § 107.002(c).
COMMENT: Although not specified in section 107.002, the guardian ad litem should also receive copies of any expert’s reports and child custody evaluation or adoption evaluation reports.
In a contested case, the guardian ad litem must provide copies of his report, if any, to the attorneys for the parties as the court directs, but not later than the earlier of the date required by the scheduling order or the tenth day before the commencement of the trial. Tex. Fam. Code § 107.002(g).
Further requirements apply to a guardian ad litem appointed for a child in a proceeding brought by a governmental agency under Family Code chapter 262 or 263. See Tex. Fam. Code § 107.002(b–1).
Notice of Abortion: The role of guardians ad litem in this area is covered in chapter 14 of this manual.
§ 13.7Guardian Ad Litem at Trial
A guardian ad litem is entitled to attend all legal proceedings. The guardian ad litem has considerable latitude in determining what hearings, conferences, depositions, or other proceedings to attend in order to protect the ward. Diamond v. San Soucie, 239 S.W.3d 428 (Tex. App.—Dallas 2007, no pet.).
The court may compel the guardian ad litem to attend a trial or hearing and to testify as necessary for the proper disposition of the suit. Tex. Fam. Code § 107.002(d). Unless the guardian ad litem is an attorney who has been appointed in the dual role and subject to the Texas Rules of Evidence, the court shall ensure in a hearing or in a trial on the merits that the guardian ad litem has an opportunity to testify regarding, and is permitted to submit a report regarding, the guardian ad litem’s recommendations relating to the child’s best interests and the basis for the guardian ad litem’s recommendations. Tex. Fam. Code § 107.002(e).
In a nonjury trial, a party may call the guardian ad litem as a witness for the purpose of cross-examination regarding the guardian ad litem’s report, even if the guardian ad litem is not listed as a witness by a party. If the guardian ad litem is not called as a witness, the court shall permit the guardian ad litem to testify in the narrative. Tex. Fam. Code § 107.002(f). However, in a jury trial, disclosure to the jury of the contents of the report to the court remains subject to the Texas Rules of Evidence. Tex. Fam. Code § 107.002(h).
Further requirements apply to a guardian ad litem appointed to represent a child in the managing conservatorship of the Department of Family and Protective Services. See Tex. Fam. Code § 107.002(i).
§ 13.8Powers and Duties of Attorney Ad Litem
Family Code section 107.003 sets out the powers and duties of an attorney ad litem appointed to represent a child. See Tex. Fam. Code § 107.003. All of the attorney ad litem’s duties are mandatory.
The attorney ad litem must be trained in child advocacy or have experience determined by the court to be equivalent to that training. Tex. Fam. Code § 107.003(a)(2).
The attorney ad litem must, subject to rules 4.02, 4.03, and 4.04 of the Texas Disciplinary Rules of Professional Conduct and within a reasonable time after the appointment, interview (1) the child in a developmentally appropriate manner, if the child is four years of age or older; (2) each person who has significant knowledge of the child’s history and condition, including any foster parent of the child; and (3) the parties to the suit. He must seek to elicit in a developmentally appropriate manner the child’s expressed objectives of representation, consider the impact on the child in formulating the attorney’s presentation of the child’s expressed objectives of representation to the court, and investigate the facts of the case to the extent the attorney considers appropriate. He must also obtain and review copies of relevant records relating to the child as provided by Family Code section 107.006; participate in the conduct of the litigation to the same extent as an attorney for a party; take any action consistent with the child’s interests that the attorney considers necessary to expedite the proceedings; encourage settlement and the use of alternative forms of dispute resolution; and review and sign, or decline to sign, a proposed or agreed order affecting the child. Tex. Fam. Code § 107.003(a)(1).
In addition, the attorney ad litem appointed for a child shall, in a developmentally appropriate manner, advise the child and, 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, represent the child’s expressed objectives of representation and follow the child’s expressed objectives of representation during the course of litigation. As appropriate, considering the nature of the appointment, the attorney ad litem shall 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. Tex. Fam. Code § 107.004(a).
Further requirements apply to an attorney ad litem appointed for a child in a proceeding brought by a governmental agency under Family Code chapter 262, 263, or 264. See Tex. Fam. Code §§ 107.003(b), 107.004(b)–(e).
Family Code section 107.0131 sets out the powers and duties of an attorney ad litem appointed to represent the interests of a parent in a suit filed by a governmental agency, Family Code section 107.0132 sets out the powers and duties of an attorney ad litem appointed to represent the interests of an alleged father in such a suit, and Family Code section 107.014 sets out the powers and duties of an attorney ad litem appointed to represent the interests of a parent whose identity or location is unknown or who was served by publication in such a suit. See Tex. Fam. Code §§ 107.0131, 107.0132, 107.014. All of the attorney ad litem’s duties are mandatory.
An attorney ad litem who fails to perform the required duties is subject to disciplinary action under subchapter E, chapter 81, of the Texas Government Code. Tex. Fam. Code §§ 107.0045, 107.0133.
The term ad litem means “for the suit.” Therefore, the attorney serving as ad litem in a suit affecting the parent-child relationship does not have the authority to represent the party in other matters. See Brownsville-Valley Regional Medical Center v. Gamez, 894 S.W.2d 753, 756 (Tex. 1995).
In In re D.W.G.K., 558 S.W.3d 671, 679 (Tex. App.—Texarkana 2018, pet. denied), a parent whose rights had been terminated complained on appeal that the attorney ad litem had provided ineffective assistance of counsel to the child by not representing the child’s “expressed objectives.” The court held that the parent did not have standing to raise an ineffective assistance of counsel claim on behalf of the child.
§ 13.9Entitlements of Attorney Ad Litem
The attorney ad litem is entitled to (1) request clarification from the court if the role of the attorney is ambiguous, (2) request a hearing or trial on the merits, (3) consent or refuse to consent to an interview of the child by another attorney, (4) receive a copy of each pleading or other paper filed with the court, (5) receive notice of each hearing in the suit, (6) participate in certain case staffings concerning the child, and (7) attend all legal proceedings in the suit. Tex. Fam. Code §§ 107.003(a)(3), 107.0131(a)(2). The attorney is also entitled to access to the child and to information about the child, as described in section 13.16 below.
§ 13.10Substituted Judgment of Attorney for Child
Before the 2003 statutory changes, an attorney ad litem was obliged to advocate the child’s wishes even if the attorney ad litem believed that the child’s desires were detrimental. However, Family Code section 107.008 now allows the attorney ad litem to use his own judgment to determine if the child cannot meaningfully formulate the child’s objectives of representation in a case because the child (1) lacks sufficient maturity to understand and form an attorney-client relationship with the attorney; (2) despite appropriate legal counseling, continues to express objectives of representation that would be seriously injurious to the child; or (3) for any other reason is incapable of making reasonable judgments and engaging in meaningful communication. Tex. Fam. Code § 107.008(a).
If an attorney ad litem determines that the child cannot meaningfully formulate the child’s expressed objectives of representation, the attorney ad litem may present to the court a position that the attorney determines will serve the best interests of the child. Tex. Fam. Code § 107.008(b). Family Code section 107.008(c) prescribes the steps for the attorney ad litem to take under these circumstances if a guardian ad litem has been appointed for the child in a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child. See Tex. Fam. Code § 107.008(c).
§ 13.11Answer and Other Pleadings
The attorney ad litem must file an answer for the child or the person he is appointed to represent.
The attorney should also consider whether requests for affirmative relief, on a temporary or final basis, should be made, including requests for psychological examinations or evaluations of the child or parties, child custody evaluations, restraining orders and injunctions, family services, counseling, drug or alcohol testing, parenting classes, establishment of child support, implementation of periods of possession, restrictions or limitations on parental possession or access, and contempt for failure to comply with court orders. The attorney ad litem may need to conduct discovery. If applicable, the attorney ad litem may also wish to file pleadings requesting termination of parental rights or the appointment of a nonparent as the child’s managing conservator.
COMMENT: It is important to remember that the Texas Disciplinary Rules of Professional Conduct prohibit contact with a person represented by an attorney. See Tex. Disciplinary Rules Prof’l Conduct R. 4.02. Accordingly, it is imperative that the attorney ad litem obtain the written consent of a person’s attorney before conducting an interview with that person or his expert witnesses. If written consent cannot be obtained, formal discovery will be necessary.
§ 13.12Powers and Duties of Amicus Attorney
The amicus attorney’s primary duty is to the trial court to make recommendations regarding the best interest of the child. Because the amicus attorney is appointed to assist the court, he owes a duty of competent representation only to the trial court. The amicus attorney has no duty of care to either parent. Zeifman v. Nowlin, 322 S.W.3d 804 (Tex. App.—Austin 2010, no pet.). An amicus attorney is not considered a neutral person and cannot act as a mediator in a case in which he is appointed. In re E.B., No. 12-17-00214-CV, 2017 WL 4675109, at *4 (Tex. App.—Tyler Oct. 18, 2017, orig. proceeding [mand. denied]) (mem. op.).
Family Code section 107.003 sets out the specific powers and duties of an amicus attorney appointed to assist the court. See Tex. Fam. Code § 107.003. All of the amicus attorney’s duties are mandatory.
The amicus attorney must be trained in child advocacy or have experience determined by the court to be equivalent to that training. Tex. Fam. Code § 107.003(a)(2).
The amicus attorney must, subject to rules 4.02, 4.03, and 4.04 of the Texas Disciplinary Rules of Professional Conduct and within a reasonable time after the appointment, interview (1) the child in a developmentally appropriate manner, if the child is four years of age or older; (2) each person who has significant knowledge of the child’s history and condition, including any foster parent of the child; and (3) the parties to the suit. He must seek to elicit in a developmentally appropriate manner the child’s expressed objectives of representation, consider the impact on the child in formulating the attorney’s presentation of the child’s expressed objectives of representation to the court, and investigate the facts of the case to the extent the attorney considers appropriate. He must also obtain and review copies of relevant records relating to the child as provided by Family Code section 107.006; participate in the conduct of the litigation to the same extent as an attorney for a party; take any action consistent with the child’s interests that the attorney considers necessary to expedite the proceedings; encourage settlement and the use of alternative forms of dispute resolution; and review and sign, or decline to sign, a proposed or agreed order affecting the child. Tex. Fam. Code § 107.003(a)(1).
Unless the court specifically limits the amicus attorney in the order of appointment, an amicus attorney shall advocate the best interests of the child after reviewing the facts and circumstances of the case; however, in determining the best interests of the child, an amicus attorney is not bound by the child’s expressed objectives of representation. Tex. Fam. Code § 107.005(a). The amicus attorney shall, in a developmentally appropriate manner, (1) with the consent of the child, ensure that the child’s expressed objectives of representation are made known to the court; (2) explain the role of the amicus attorney to the child; (3) inform the child that the amicus attorney may use information that the child provides in providing assistance to the court; and (4) become familiar with the American Bar Association’s standards of practice for attorneys who represent children in custody cases. Tex. Fam. Code § 107.005(b).
An amicus attorney may not disclose confidential communications between the amicus attorney and the child unless the amicus attorney determines that disclosure is necessary to assist the court regarding the best interests of the child. Tex. Fam. Code § 107.005(c).
§ 13.13Entitlements of Amicus Attorney
The amicus attorney is entitled to (1) request clarification from the court if the role of the attorney is ambiguous, (2) request a hearing or trial on the merits, (3) consent or refuse to consent to an interview of the child by another attorney, (4) receive a copy of each pleading or other paper filed with the court, (5) receive notice of each hearing in the suit, (6) participate in any case staffing concerning the child conducted by the Department of Family and Protective Services, and (7) attend all legal proceedings in the suit. Tex. Fam. Code § 107.003(a)(3). The attorney is also entitled to access to the child and to information about the child, as described in section 13.16 below. The trial court is not the client of the amicus attorney, however, and therefore the amicus shall not engage in ex parte communications with the court. In re S.A.G., 403 S.W.3d 907, 915–16 (Tex. App.—Texarkana 2013, pet. denied).
§ 13.14Attorney Work Product and Testimony
An attorney ad litem, an attorney serving in the dual role, or an amicus attorney may not (1) be compelled to produce attorney work product developed during the appointment as an attorney, (2) be required to disclose the source of any information, (3) submit a report into evidence, or (4) testify in court except as authorized by rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. Tex. Fam. Code § 107.007(a). However, Family Code section 107.007(a) does not set aside the duty of an attorney to report child abuse or neglect under section 261.101. Tex. Fam. Code § 107.007(b).
§ 13.15Fees for Representatives
Nongovernmental Cases: In a suit other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, in addition to the attorney’s fees that may be awarded under Family Code chapter 106, an attorney appointed as an attorney ad litem for the child or as an amicus attorney and a professional who holds a relevant professional license and who is appointed as guardian ad litem for the child, other than a volunteer advocate, is entitled to “reasonable fees and expenses” in an amount set by the court and ordered to be paid by one or more parties to the suit. Tex. Fam. Code § 107.023(a). The court shall (1) determine the fees and expenses of the representative by reference to the reasonable and customary fees for similar services in the county of jurisdiction; (2) order a reasonable cost deposit to be made at the time the court makes the appointment; and (3) before the final hearing, order an additional amount to be paid to the credit of a trust account for the use and benefit of the representative. Tex. Fam. Code § 107.023(b). The court may determine that fees thus awarded are necessaries for the benefit of the child. Tex. Fam. Code § 107.023(d). A court may not award costs, fees, or expenses to a representative against the state, a state agency, or a political subdivision of the state under this provision. Tex. Fam. Code § 107.023(c).
A trial court cannot characterize the award of fees to an amicus attorney or attorney ad litem as “additional child support” or order that the award be enforced by income withholding. Attorney’s fees may be awarded as child support solely under Family Code chapter 157 in child support enforcement proceedings. In re R.H.W., 542 S.W.3d 724, 744 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Although the court in R.H.W. mentioned only child support enforcement proceedings under chapter 157, attorney’s fees may also be awarded as child support under chapter 157 in proceedings for enforcement of possession.
A trial court cannot compel the Office of Attorney General to disburse funds collected for child support to pay toward a parent’s obligation for amicus attorney’s fees. In re H.G.-J., 503 S.W.3d 679, 682 (Tex. App.—Houston [14th Dist.], no pet.). Additionally, a trial court has no authority to strike a jury demand as a sanction for failure to pay amicus attorney’s fees in a case where the Family Code expressly authorizes a trial by jury. Wheeler v. Wheeler, No. 01-16-00642-CV, 2017 WL 3140027 (Tex. App.—Houston [1st Dist.] July 25, 2017, no pet.) (mem. op.) (citing Saxton v. Daggett, 864 S.W.2d 729, 734 (Tex. App.—Houston [1st Dist.] 1993, no writ)). Finally, a court retains jurisdiction to award fees until the time that a final judgment is signed that dismisses or disposes of all claims, including a request for amicus/ad litem fees. In re M.B.D., No. 09-18-00278-CV, 2020 WL 1879474, at *3 (Tex. App.—Beaumont Apr. 16, 2020, no pet.) (mem. op.) (amicus fees could be awarded even after nonsuit was granted).
Governmental Cases: Family Code section 107.015 governs fees for attorneys ad litem and guardians ad litem appointed in suits filed by governmental entities requesting termination of the parent-child relationship or appointment of a conservator of a child. See Tex. Fam. Code § 107.015. However, the trial court lacked discretion to award the guardian ad litem compensation for fees once it became clear that there was no conflict of interest between the child and the mother, as next friend of the child, because a guardian ad litem may be compensated only for necessary services performed. Ford Motor Co. v. Stewart, Cox & Hatcher, P.C., 390 S.W.3d 294, 297–98 (Tex. 2013) (per curiam).
§ 13.16Access to Child and Information about Child
In conjunction with the appointment of an attorney ad litem for the child (not for an adult or a parent), a guardian ad litem for the child, or an amicus attorney, the court shall issue an order authorizing the representative to have immediate access to the child and any information relating to the child. Without requiring an additional order or release, the custodian of any relevant records relating to the child, including records regarding social services, law enforcement records, school records, records of a probate or court proceeding, and records of a trust or account for which the child is a beneficiary, shall provide access to the representative. Without requiring a further order or release, the custodian of a medical, mental health, or substance-abuse treatment record of a child that is privileged or confidential under other law shall release the record to the authorized representative, except that a child’s substance-abuse treatment record that is confidential under 42 U.S.C. § 290dd–2 may be released only as provided under federal regulations. The disclosure of a confidential record to a representative does not affect the confidentiality of the record, and the representative may not disclose the record further except as provided by court order or other law. A physician may charge a reasonable fee for providing copies of the records (Texas Occupations Code section 159.008). Tex. Fam. Code § 107.006.
§ 13.17Immunity of Ad Litems and Amicus
Family Code section 107.009(a) provides that an appointed guardian ad litem, attorney ad litem, or amicus attorney is not liable for civil damages arising from an action taken, a recommendation made, or an opinion given in the appointed capacity. This immunity does not apply to an action taken, a recommendation made, or an opinion given with conscious indifference or reckless disregard to the safety of another, in bad faith or with malice, or that is grossly negligent or willfully wrongful. Tex. Fam. Code § 107.009. The immunity statute recognizes no exception to immunity based on allegations of fraud. Zeifman v. Nowlin, 322 S.W.3d 804 (Tex. App.—Austin 2010, no pet.).
In a case of first impression in Texas, the court considered the issue of absolute immunity for the actions taken by a guardian ad litem pursuant to her court appointment. The court of appeals held that the ad litem functions as “an arm of the court” and is thus entitled to the same immunity extended to judges in the performance of their judicial duties. Delcourt v. Silverman, 919 S.W.2d 777, 784–86 (Tex. App.—Houston [14th Dist.] 1996, writ denied).
§ 13.18Process of Appointment by Court
Certain rules concerning the appointment of attorneys ad litem and guardians ad litem apply to courts in counties with a population of 25,000 or more. See Tex. Gov’t Code § 37.001.
The court must establish and maintain a list of all attorneys who are qualified to serve as an attorney ad litem and are registered with the court and a list of all attorneys and other persons who are qualified to serve as a guardian ad litem and are registered with the court. Multiple lists categorized by the type of case and the person’s qualifications are permitted. Tex. Gov’t Code § 37.003(a), (b).
Generally, the court must use a rotation system and appoint the person whose name appears first on the list. Tex. Gov’t Code § 37.004(a). A person on the list whose name does not appear first, or a person who meets the requirements to serve but is not on the list, may be appointed if the parties agree and the court approves or if an initial declaration of a state of disaster for the area is made within thirty days before the appointment. Tex. Gov’t Code § 37.004(c), (d–1), (g). Such a person may also be appointed on a finding of good cause if the person’s appointment is required on a complex matter because he has relevant specialized education, training, certification, skill, language proficiency, or knowledge of the subject matter of the case; has relevant prior involvement with the parties or the case; or is in a relevant geographic location. Tex. Gov’t Code § 37.004(d). A person who is not appointed in the order in which his name appears on the applicable list stays next in line, and a person who has been appointed goes to the end of the list. Tex. Gov’t Code § 37.004(e), (f).
These provisions do not apply to the appointment of a volunteer under a program authorized by Family Code section 107.031 or of an attorney ad litem, guardian ad litem, or amicus attorney appointed under a domestic relations office established under Family Code chapter 203, providing services without expecting or receiving compensation, or providing services as a volunteer of a nonprofit organization that provides pro bono legal services to the indigent. Tex. Gov’t Code § 37.002.
The lists must be posted annually at the courthouse and on the court’s website. Tex. Gov’t Code § 37.005.
§ 13.19Special Appointments; Immunity
In addition to appointing amicus attorneys and ad litems, trial courts may delegate their authority or appoint others to perform services for the court. When a trial court makes such a delegation or appointment, judicial immunity that attaches to the judge may follow the delegation or appointment. Whether a delegate or appointee is protected by judicial immunity is determined by whether the delegate or appointee exercises discretionary judgment or merely performs ministerial or administrative tasks. For example, judicial immunity has been extended to court-appointed trustees, receivers, and psychologists, but it has not been extended to court reporters. Derived judicial immunity is lost when the court officer acts in the clear absence of all jurisdiction and outside the scope of his authority. B.W.D. v. Turnage, No. 05-13-01733-CV, 2015 WL 869289 (Tex. App.—Dallas 2015, pet. denied) (mem. op.).
The case of Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), although involving the termination of parental rights, is generally recognized for its nonexclusive list of factors that a court should consider in ascertaining the best interests of the child in any suit affecting the parent-child relationship. Accordingly, in conducting an investigation, reviewing records concerning the child, interviewing the child, and interviewing other persons who have information concerning the child, the representative can find guidance in these factors listed in Holley. The courts should consider in ascertaining the best interests of a child—
1.the desires of the child,
2.the emotional and physical needs of the child now and in the future,
3.the emotional and physical danger to the child now and in the future,
4.the parenting abilities of the individuals seeking custody,
5.the programs available to assist these individuals to promote the best interest of the child,
6.the plans for the child by these individuals or by the agency seeking custody,
7.the stability of the home or proposed placement,
8.the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and
9.any excuse for the acts or omissions of the parents.
Holley, 544 S.W.2d at 371–72.
In addition to complying with any duties established by statute, the representative should consider conducting a home visit of each person seeking conservatorship; attending all hearings and administrative meetings; reviewing psychological evaluations with his own experts; interviewing teachers, doctors, and other professionals who have worked with the child; observing the child and parent interact; reviewing other documentation regarding the child and/or family (such as the TDFPS file or district attorney’s file); conducting a criminal background check on the parties and other family members with whom the child will be in regular contact if placed with the party seeking custody; determining the resources available to each party to meet the child’s needs; and carefully interviewing each party and the professionals involved in the case as to their perception of the child’s needs.
COMMENT: The attorney should consider being discharged as guardian or attorney ad litem or amicus attorney in a court order at the conclusion of the case. Alternatively, the judge should be asked to include the date the attorney’s services end in the court’s order of appointment or an affirmative statement that the appointment does not include any responsibility to appeal. However, the attorney should advise the client of the right to appeal and the necessary steps to perfect the appeal. The client will have to obtain other counsel or agree to ask the court to affirmatively continue the appointment in a new court order. As a practical matter, the attorney should have the appointment extended, with an order for payment. If this has not been clarified at the trial level, the attorney should seek an order from the appellate court on this issue.
The following websites contain information relating to the topic of this chapter:
American Bar Association Standards of Practice for Lawyers Representing a Child in Abuse and Neglect Cases (§ 13.2)
www.americanbar.org/groups/family_law/resources/standards_of_practice_reports_recommendations.html
National Association of Counsel for Children Recommendations for Representation of Children in Abuse and Neglect Cases (§ 13.2)
www.naccchildlaw.org