F. After Ex Parte Order Authorizing Removal
1. Duration of Temporary Order, Temporary Restraining Order, and Attachment
A temporary order, temporary restraining order, or attachment of the child issued under Tex. Fam. Code § 262.102(a) expires not later than 14 days after the date it is issued unless it is extended as provided by Tex. R. Civ. P. 680 or Tex. Fam. Code § 262.201(a-3). Tex. Fam. Code § 262.103.
2. Temporary Managing Conservatorship
The court has the authority to issue a temporary order as described in Tex. Fam. Code § 105.001, including an order for temporary conservatorship of a child, which may be rendered without notice and an Adversary Hearing if the order is an emergency order sought by a governmental entity. Tex. Fam. Code § 105.001(h).
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code § 153.002.
The managing conservator must be a parent, a competent adult, DFPS, or a licensed child-placing agency. Tex. Fam. Code § 153.005(b).
The rights and duties of a non-parent appointed as managing conservator are listed in Tex. Fam. Code § 153.371.
A temporary order in a suit affecting a parent-child relationship rendered in accordance with Tex. Fam. Code § 105.001 is not required to include a temporary parenting plan. The court may not require the submission of a temporary parenting plan in any case by local rule or practice. Tex. Fam. Code § 153.602.
3. Setting Date for Full Adversary Hearing
Unless the child has already been returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession and the temporary order, if any, has been dissolved, a full Adversary Hearing shall be held not later than the 14th day after the date of the child was taken into possession by the governmental entity. Tex. Fam. Code § 262.201(a).
Special Issue: Many judges schedule the full Adversary Hearing at the time the ex parte order is signed to allow sufficient time for the parent to receive timely notice of the hearing and to allow sufficient time for the parent to request an attorney. |
4. Attorney ad Litem and Guardian Ad Litem Appointments
4.1 Mandatory Appointment of Attorney ad Litem and Guardian ad Litem
In a suit filed by a governmental entity requesting termination of the parent-child relationship or to be named conservator of a child, the court shall appoint an attorney ad litem to represent the interests of the child immediately after the filing, but before the full Adversary Hearing, to ensure adequate representation of the child. Tex. Fam. Code § 107.012. For more information regarding the role and responsibilities of an attorney ad litem, please see Tex. Fam. Code § 107.003 and Tex. Fam. Code § 107.004.
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 shall appoint a guardian ad litem to represent the best interests of the child immediately after the filing of the petition but before the full Adversary Hearing. Tex. Fam. Code § 107.011(a). For more information regarding the role and responsibilities of a guardian ad litem, please see Tex. Fam. Code § 107.002.
4.2 Discretionary Appointment of Parent Attorney
Changes to the Texas Family Code during the 84th Legislative Session in 2015 provide for temporary appointment of an attorney for certain parents. Tex. Fam. Code § 107.0141 states that the court may appoint an attorney ad litem to represent the interests of a parent for a limited period beginning at the time the court issues a temporary restraining order or attachment of the parent’s child under Tex. Fam. Code Chapter 262 and ending on the court’s determination of whether the parent is indigent before commencement of the full Adversary Hearing. Tex. Fam. Code § 107.0141(a).
An attorney ad litem appointed for a parent under this section:
• Has the powers and duties of an attorney ad litem appointed under Tex. Fam. Code § 107.0131; and
• If applicable, shall:
◦ conduct an investigation regarding the petitioner’s due diligence in locating and serving citation on the parent; and
◦ interview any parent or other person who may have information relating to the identity or location of the parent. Tex. Fam. Code § 107.0141(b).
If the attorney ad litem identifies and locates the parent, the attorney ad litem shall:
• Inform the parent of the parent’s right to be represented by an attorney ad litem appointed by the court, if the parent is indigent and appears in opposition to the suit;
• If the parent claims indigence and requests an attorney ad litem beyond the period of time the temporary appointment under Tex. Fam. Code § 107.0141, assist the parent in making a claim of indigence for the appointment of an attorney ad litem; and
• Assist the parent in preparing for the full Adversary Hearing under Tex. Fam. Code Chapter 262, Subchapter C. Tex. Fam. Code § 107.0141(c).
If the court determines the parent is indigent, the court may appoint the attorney ad litem to continue to represent the parent under Tex. Fam. Code § 107.013(a)(1). Tex. Fam. Code § 107.0141(d).
If the attorney ad litem is unable to identify or locate the parent, the attorney ad litem shall submit to the court a written summary of the attorney ad litem’s efforts to identify or locate the parent with a statement that the attorney ad litem was unable to identify or locate the parent. On receipt of the summary required by Tex. Fam. Code § 107.0141(e), the court shall discharge the attorney ad litem from the appointment. Tex. Fam. Code § 107.0141(e).
If the attorney ad litem identifies or locates the parent, and the court determines that the parent is not indigent, the court shall discharge the attorney ad litem from the appointment. Tex. Fam. Code § 107.0141(f).
4.3 Court-Maintained Appointment Lists
In 2015, the 84th Texas Legislature passed two bills requiring the development of attorney lists. Each court in this state shall establish and maintain a list of all attorneys who are qualified to serve as an attorney or guardian ad litem or mediator and are registered with the court. Tex. Gov’t Code § 37.003(a). Guardians ad litem or other persons appointed under a program authorized by Tex. Fam. Code § 107.031 are exempt from this list. Tex. Gov’t Code § 37.002. A court annually shall post each list at the courthouse of the county in which the court is located and on any Internet website of the court. Tex. Gov’t Code § 37.005. Courts will also be required to use a rotation system to appoint attorneys unless certain exceptions apply. Tex. Gov’t Code § 37.004.
Additionally, the clerk of each court shall prepare a report on court appointments for an attorney ad litem, guardian ad litem, guardian, or mediator for a case before the court in the preceding month or note that no appointments were made for the preceding month. Tex. Gov’t Code§ 36.004(a). The report on court appointments must include:
• The name of each person appointed by the court as an attorney ad litem, guardian ad litem, guardian or mediator for a case in that month;
• The name of the judge and the date of the order approving compensation to be paid to a person appointed as an attorney ad litem, guardian ad litem, guardian or mediator for a case in that month;
• The number and style of each case in which an a person was appointed as an attorney ad litem, guardian ad litem, guardian or mediator for a case in that month;
• The number of cases each person was appointed by the court to serve as an attorney ad litem, guardian ad litem, guardian or mediator for a case in that month;
• The total amount of compensation paid to a person appointed to serve as an attorney ad litem, guardian ad litem, guardian or mediator appointed by the court in that month and the source of the compensation; and
• If the total amount of compensation paid to a person appointed to serve as an attorney ad litem, guardian ad litem, guardian or mediator for one appointed case in that month exceeds $1,000, any information related to the case that is available to the court on the number of hours billed to the court for the work performed by the person or the person’s employees, including paralegals, and the billed expenses. Tex. Gov’t Code § 36.004(a)(1)-(6).
Not later than the 15th day of each month, the clerk of the court shall:
• Submit a copy of the report to the Office of Court Administration; and
• Post the report at the courthouse of the county in which the court is located and on any Internet website of the court. Tex. Gov’t Code § 36.004(b).
If a court fails to provide to the clerk of the court information required for the report submitted under Tex. Gov’t Code § 36.004, the court is ineligible for any grant money awarded by this state or a state agency for the next state fiscal biennium. Tex. Gov’t Code § 36.005.
4.4 Office of Child Representation and Office of Parent Representation and Managed Assigned Counsel Program
a. Office of Child Representation and Office of Parent Representation
In 2015, the 84th Texas Legislature added sections to the Texas Family Code authorizing governmental entities, including a county or group of counties, to create offices of child representation or parent representation. Tex. Fam. Code Chapter 107, Subchapter E; Tex. Fam. Code§ 107.061; Tex. Fam. Code §107.062; Tex. Fam. Code § 107.063; Tex. Fam. Code § 107.066; Tex. Fam. Code § 107.068; Tex. Fam. Code § 107.069; Tex. Fam. Code § 107.070; Tex. Fam. Code § 107.071; and Tex. Fam. Code § 107.072.
An office of child representation is an entity that used public money to provide legal representation and services for a child in a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for the child in which the appointment is mandatory for a child under Tex. Fam. Code§ 107.012. Tex. Fam. Code § 107.064.
An office of parent representation is an entity that uses public money to provide legal representation and services for a parent in a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for the child in which the appointment is mandatory for a parent under Tex. Fam. Code § 107.013. Tex. Fam. Code § 107.065.
b. Managed Assigned Counsel Program for the Representation of Certain Children and Parents
Additionally, the 84th Texas Legislature added sections authorizing the creation of managed assigned counsel programs. Tex. Fam. Code Chapter 107, Subchapter F; Tex. Fam. Code § 107.101; Tex. Fam. Code § 107.102; Tex. Fam. Code § 107.103; Tex. Fam. Code § 107.104; Tex. Fam. Code § 107.105; Tex. Fam. Code § 107.106; Tex. Fam. Code §107.107; and Tex. Fam. Code § 107.108.
A managed assigned counsel program may be operated with public money for the purpose of appointing counsel to provide legal representation and services for a child or parent in a suit filed by a governmental entity seeking termination of the parent-child relationship or the appointment of a conservator for the child in which appointment is mandatory for a child under Tex. Fam. Code§ 107.012 and for a parent under Tex. Fam. Code § 107.013. Tex. Fam. Code § 107.102(a).
4.5 Duties and Required Training of Child’s Attorney Ad Litem
The duties and responsibilities of attorneys ad litem are found in Tex. Fam. Code § 107.003 and Tex. Fam. Code § 107.004.
Tex. Fam. Code § 107.004 requires that the attorney for the child file a written statement with the court indicating that the attorney ad litem complied with Tex. Fam. Code § 107.004(d)(1), if the child or individual is not present at the court hearing. This requirement is not intended to require that the attorney state what the child said in the meeting. It only requires that the attorney file with the court a written statement of compliance with the meeting provision in Tex. Fam. Code § 107.004.
Tex. Fam. Code § 107.004 states that the required meeting under Tex. Fam. Code § 107.004(d) must take place:
• A sufficient time before the hearing to allow the attorney ad litem to prepare for the hearing in accordance with the child's expressed objectives of representation; and
• In a private setting that allows for confidential communications between the attorney ad litem and the child or individual with whom the child ordinarily resides, as applicable. Tex. Fam. Code § 107.004(d-1).
Special Issue: This implies that a brief meeting in the hallway before a hearing is not sufficient to comply with an attorney’s obligation to meet with his or her client (or other individual). The meeting should occur sufficiently in advance of the hearing date to allow time to prepare for the hearing in light of the information obtained at the meeting. |
Tex. Fam. Code § 107.004(d-2) also requires that an attorney ad litem appointed to represent a child in the managing conservatorship of DFPS shall, before each scheduled hearing under Tex. Fam. Code Chapter 263, determine whether the child’s educational needs and goals have been identified and addressed. Tex. Fam. Code § 107.004(d-2).
4.6 Duties of Parent Attorney
Tex. Fam. Code § 107.0131 requires an attorney appointed to represent a parent to abide by the parent’s objectives for representation. Tex. Fam. Code § 107.0131(a)(1)(H).
a. Duration of Appointment of Parent Attorney
Tex. Fam. Code § 107.016 provides for continuity of representation for parents who appeal a termination or managing conservatorship order, stating:
• An order appointing DFPS as the child's managing conservator may provide for the continuation of the appointment of the guardian ad litem or attorney ad litem for the child for any period set by the court; and
• An attorney appointed under Tex. Fam. Code Chapter 107, Subchapter B 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 the suit affecting the parent-child relationship is dismissed;
◦ the date all appeals in relation to any final order terminating parental rights are exhausted or waived; or
◦ the date 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.
4.7 Duties of Parent Appointed to Represent Alleged Father
Except as otherwise provided by Tex. Fam. Code § 107.0132(b) and Tex. Fam. Code § 107.0132(d), an attorney ad litem appointed under Tex. Fam. Code § 107.013 to represent the interests of an alleged father is required to:
• Conduct an investigation regarding the petitioner’s due diligence in locating the alleged father, including by verifying that the petitioner has obtained a certificate of the results of a search of the paternity registry under Tex. Fam. Code Chapter 160;
• Interview any party or other person who has significant knowledge of the case who may have information relating to the identity or location of the alleged father; and
• Conduct an independent investigation to identify or locate the alleged father, if applicable. Tex. Fam. Code § 107.0132(a).
Tex. Fam. Code § 107.0132 provides duties for an attorney appointed to represent an alleged father who cannot be located. Specifically, those duties are limited to conducting an investigation regarding the petitioner's due diligence in locating the alleged father, and conducting an independent investigation to locate the father, including interviewing parties or persons with knowledge of the identity or location of the alleged father. If located, the attorney ad litem shall provide to each party and the court with the alleged father's name and locating information. If appropriate, the court may allow the attorney to assist the alleged father in establishing paternity. If the alleged father 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 under Tex. Fam. Code § 107.013(a)(1) or Tex. Fam. Code § 107.013(c). Tex. Fam. Code § 107.0132.
If the attorney ad litem is unable to identify or locate the alleged father, the attorney ad litem shall submit to the court a written summary of the attorney ad litem's efforts to identify or locate the alleged father with a statement that the attorney ad litem was unable to identify or locate the alleged father. Tex. Fam. Code § 107.0132. On receipt of the summary required by Tex. Fam. Code § 107.0132(d), the court shall discharge the attorney from the appointment. Tex. Fam. Code § 107.0132(d).
4.8 Duties of Attorneys Appointed to Represent Parents Whose Identity or Location is Unknown or Who Has Been Cited by Publication
Tex. Fam. Code § 107.014 addresses situations when an attorney is appointed to represent a parent whose identity or location is unknown or who has been cited by publication.
a. Duties
Except as provided by Tex. Fam. Code § 107.014(b) and Tex. Fam. Code § 107.014(e), an attorney ad litem appointed under Tex Fam. Code § 107.013 to represent the interests of a parent whose identity or location is unknown or who has been served by citation by publication is only required to:
• Conduct an investigation regarding the petitioner’s due diligence in locating the parent;
• Interview any party or other person who has significant knowledge of the case who may have information relating to the identity or location of the parent; and
• Conduct an independent investigation to identify or locate the parent, as applicable. Tex. Fam. Code § 107.014(a).
b. If Parent Identified and Located
If the attorney ad litem identifies and locates the parent, the attorney ad litem shall:
• Provide to each party and the court the parent’s name and address and any other available locating information unless the court finds that:
◦ disclosure of a parent’s address is likely to cause that parent harassment, serious harm, or injury; or
◦ the parent has been a victim of family violence; and
• If appropriate, assist the parent in making a claim of indigence for the appointment of an attorney. Tex. Fam. Code § 107.014(b).
If the court makes a finding described by Tex. Fam. Code § 107.014(b)(1)(A) or Tex. Fam. Code § 107.014(b)(1)(B), the court may:
• Order that the information not be disclosed; or
• Render any other order the court considers necessary. Tex. Fam. Code § 107.014(c).
If the court determines the parent is indigent, the court may appoint the attorney ad litem to continue to represent the parent under Tex. Fam. Code § 107.013(a)(1). Tex. Fam. Code § 107.014(d).
c. If Parent Not Located or Identified
If the attorney ad litem is unable to identify or locate the parent, the attorney ad litem shall submit to the court a written summary of the attorney ad litem’s efforts to identify or locate the parent with a statement that the attorney ad litem was unable to identify or locate the parent. On receipt of the summary required by Tex. Fam. Code § 107.014(e), the court shall discharge the attorney from the appointment. Tex. Fam. Code § 107.014(e).
4.9 Required Attorney Training
Tex. Fam. Code § 107.004 requires continuing legal education for attorneys appointed to represent children. An attorney ad litem appointed for a child in a proceeding under Tex. Fam. Code Subtitle E shall complete at least three hours of continuing legal education relating to representing children in child protection cases as described in Tex. Fam. Code § 107.004(c) as soon as practicable after the attorney ad litem is appointed. An attorney ad litem is not required to comply with Tex. Fam. Code § 107.004(d) if the court finds that the attorney ad litem has experience equivalent to the required education. Tex. Fam. Code § 107.004(b).
An attorney who is on the list maintained by the court as being qualified for appointment as an attorney ad litem for a child in a child protection case must complete at least three hours of continuing legal education relating to the representation of a child in a proceeding under Tex. Fam. Code Subtitle E each year before the anniversary date of the attorney’s listing. Tex. Fam. Code § 107.004(b-1). The continuing legal education must focus on the duties of an attorney ad litem in, and the procedures of and best practices for, representing a child in a proceeding under Tex. Fam. Code Subtitle E. Tex. Fam. Code § 107.004(c)(2).
Tex. Fam. Code § 107.0131 provides enumerated duties for parents’ attorneys, including three hours of CLE training and meeting with the client before each hearing. Tex. Fam. Code § 107.0131. Tex. Fam. Code § 107.0131 also requires that the continuing legal education relate to representing parents in child protection cases and focus on the duties of an attorney ad litem in, and the procedures of and best practices for, representing a parent in a proceeding under Tex. Fam. Code Subtitle E. Tex. Fam. Code § 107.0131(b)(2). An attorney who is on the list maintained by the court as being qualified for appointment as an attorney ad litem for a parent in a child protection case must complete at least three hours of continuing legal education relating to the representation of a parent in a proceeding under Tex. Fam. Code Subtitle E each year before the anniversary date of the attorney’s listing. Tex. Fam. Code § 107.0131(c).
The State Bar of Texas currently offers a number of online Continuing Legal Education (CLE) courses in the CPS Library of TexasBar CLE related to representation of all parties on the CPS docket, including the following webinars:
• Advocating for Youth Aging Out of the Texas Foster Care System
• Child Abuse & Neglect Workshop from 2014 Advanced Family Law Conference
• Representing a Teen Parent in a CPS Case
• Practice Tips for Representing Children in CPS Cases
• Representing Children in CPS Cases (Satisfies Education Requirements)
• Representing a Teen Parent in a CPS Case
• Representing Texas Parents in Abuse and Neglect Cases (Satisfies Education Requirements)
• Resources and Procedures for Representing Crossover Youth with Disabilities
• Special Education Advocacy for Kids in the Foster Care System
• Transitioning Your CPS Case from Trial To Appeal
• Trial Skills in the CPS Case
• Moving from Ordinary to Extraordinary Representation in CPS Cases (Satisfies Education Requirements)
• Child Protection Legislative Update - 84th Legislative Session
• Thinking Ahead: Dealing with Appeals Issues in CPS Cases
Additional webinars are added to the CPS online library periodically. Please select the CPS practice area when using the following link in order to access the current offerings: http://www.texasbarcle.com/CLE/OCSearch2.asp.
These webinars are free to judges. Attorneys who currently take appointments or who represent the state on a CPS docket, as well as attorneys who pledge to take appointments, can qualify for a discount when registering for any of these webinars.
As noted above, several of these webinars have qualified to meet the statutory three hour education requirements for attorneys to qualify for court appointments on child protection dockets.
5. Notice Requirement to Parent Regarding Legal Representation
The temporary order, temporary restraining order, or attachment of a child rendered by the court must contain the following statement prominently displayed in boldface type, capital letters, or underlined:
“YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT AND UNABLE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT OF AN ATTORNEY BY CONTACTING THE COURT AT [ADDRESS], [TELEPHONE NUMBER]. IF YOU APPEAR IN OPPOSITION TO THE SUIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN ATTORNEY, THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND THE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL APPOINT AN ATTORNEY TO REPRESENT YOU.” Tex. Fam. Code § 262.102(d).
DFPS or other agency must give written notice to each parent of the child or to the child’s conservator or legal guardian when a representative of DFPS or other agency takes possession of a child. Tex. Fam. Code § 262.109(a).
The written notice must be given as soon as practicable, but in any event not later than the first working day after the date the child is taken into possession. Tex. Fam. Code § 262.109(b).
The written notice requirements must include, among other things:
• The reasons why the child was removed;
• Contact information for the caseworker;
• A summary of legal rights; and
• A statement that the parent has the right to hire an attorney. Tex. Fam. Code § 262.109(c).
The court may, but is not required to, waive the required notice under special circumstances, such as:
• The inability to locate the parent or caretaker;
• The child is an abandoned infant delivered to an emergency care provider; or
• For other good cause. Tex. Fam.Code § 262.109(d).
Special Issue: DFPS is responsible for providing service of citation and notice of several matters relating to agency activities relating to a lawsuit (investigations, removals, review hearings, etc.). While the same word “notice” is often used for both, it is important to distinguish between service and notice. The Texas Family Code requires that DFPS provide notice to parents of the investigation and removal of a child, as well as notice to relatives of the removal, and notice to parties, relatives, and caregivers of all review hearings. These notice obligations, however, do not need to be executed in accordance with the rules governing service under the Texas Rules of Civil Procedure. Tex. Fam. Code § 263.0021 provides several methods of notice available to DFPS. In lawsuits filed by DFPS, it is responsible for obtaining service of citation containing the original petition and providing notice of trial settings and other events during the pendency of the legal case. With respect to service of citation, Tex. Fam. Code § 102.009(c) directs that service be made “as in other civil cases.” Accordingly, DFPS is responsible for obtaining service of citation to all parties listed in Tex. Fam. Code § 102.009(a). Service must be accomplished via the method prescribed in Tex. R. Civ. P. 106 and by a person authorized pursuant to Tex. R. Civ. P. 103. |
6. Information Provided to Relatives and Certain Individual; Investigation
When DFPS takes possession of a child under Tex. Fam. Code Chapter 262, DFPS shall provide information to each adult who DFPS is able to identify and locate and who is:
• Related to the child within the third degree of consanguinity;
• An adult relative of the alleged father if DFPS has a reasonable basis to believe the alleged father is the child’s biological father; or
• Identified as a potential relative or designated caregiver as defined by Tex. Fam. Code § 264.751 on the proposed Child Placement Resources Form provided under Tex. Fam. Code § 261.307, and may provide information regarding an adult who DFPS determines has a long-standing and significant relationship with the child. Tex. Fam. Code § 262.1095(a).
• The written notice must include, among other things:
◦ notice that the child is in the state’s custody;
◦ options available for participation in the care and placement and support of the family;
◦ options that may be lost if the individual fails to timely respond;
◦ include the date, time and location of the Status Hearing, if known. Tex. Fam. Code § 262.1095(b).
DFPS is not required to provide information to a person who has criminal or family violence history. Tex. Fam. Code § 262.1095(c).
DFPS must use due diligence to identify and locate all individuals described by Tex. Fam. Code § 262.1095(a) within 30 days of the date DFPS files the SAPCR. Tex. Fam. Code § 262.1095(d). The failure of a parent or alleged father to complete the Child Placement Resources Form does not relieve DFPS of its duty to seek information about persons under Tex. Fam. Code § 262.1095(d). Tex. Fam. Code § 262.1095(e).