Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEYGENERALOF TEXAS
GREG ABBOTT
February 27,2006
The Honorable Jane Nelson Opinion No. GA-0406
Chair, Committee on Health and Human
Services Re: Whether a telephone interview satisfies an
Texas State Senate attorney ad litem’s duty under Texas Family Code
Post Office Box 12068 section 107.004(d) to meet with the child before
Austin, Texas 7871 l-2068 each court hearing or, if the child is under four
years of age, with the individual with whom the
The Honorable Suzanna Hupp child ordinarily resides; whether a court has
Chair, Committee on Human Services meaningful discretion to determine that the
Texas House of Representatives attorney ad litem has shown good cause for not
Post Office Box 2910 complying with this section (RQ-0387-GA)
Austin, Texas 78768-2910
Dear Senator Nelson and Representative Hupp:
You ask whether a telephone interview satisfies an attorney ad litem’s duty under Texas
Family Code section 107.004(d) to meet with the child before each court hearing or, if the child is
under four years of age, with the individual with whom the child ordinarily resides.’ You also ask
whether, given the language of section 107.004(e), a court has “meaningful discretion” to determine
that the attorney ad litem has shown good cause for not complying with section 107.004(d). See
Request Letter, supra note 1.
During its last regular session the legislature made a number of changes concerning the
state’s child and adult protective services. See Act of May 29, 2005, 79th Leg., R.S., ch. 268,
5 1.04(a), 2005 Tex. Gen. Laws 621, 622. The legislature added the following requirement to the
duties of an attorney ad litem appointed for a child in a proceeding under chapter 262 (,‘Procedures
in Suit by Governmental Entity to Protect Health and Safety of Child”) or chapter 263 (“Review of
Placement of Children under Care of Department of Protective and Regulatory Services”):
(d) Except as provided by Subsection (e), an attorney ad litem
appointed for a child in a proceeding under Chapter 262 or 263 shall
meet before each court hearing with:
‘See Letter fkom Honorable Jane Nelson, Chair, Senate Committee on Health and Human Services, and
Honorable Suzanna Hupp, Chair, House Committee on Human Services, to Honorable Greg Abbott, Attorney General
of Texas (Aug. 24,2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter
Request Letter].
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The Honorable Suzanna Hupp
(1) the child, if the child is at least four years of age; or
(2) the individual with whom the child ordinarily resides,
including the child’s parent, conservator, guardian, caretaker, or
custodian, if the child is younger than four years of age.
(e) An attorney ad litem appointed for a child in a proceeding under
Chapter 262 or 263 is not required to comply with Subsection (d)
before a hearing if the court finds at that hearing that the attorney ad
litem has shown good cause why the attorney ad litem’s compliance
with that subsection is not feasible or in the best interest of the child.
Id. (codified at TEX. FAM. CODE ANN. 0 107.004(d)-(e) (Vernon Supp. 2005)). You ask first
whether an interview over the telephone would satisfy the new requirement to “meet” with the child
or the individual with whom the child ordinarily resides. See Request Letter, supra note 1; TEX.
FAM. CODE ANN. 6 107.004(d) (Vernon Supp. 2005).
The primary goal of statutory construction is to ascertain and give effect to the legislature’s
intent. See Tex. Natural Rex Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368,378
(Tex. 2005). To achieve that goal, the language of a statute must be construed in context and the
statute should be construed as a whole rather than as isolated provisions. See TEX. GOV’T CODE
ANN. 5 311 .Oll (Vernon 2005); City of San Antonio v. City of Boerne, 111 S.W.3d 22,25 (Tex.
2003). One provision should not be given “a meaning out of harmony or inconsistent with other
provisions, although it might be susceptible to such a construction standing alone.” See Helena
Ckem. Co. v. Wilkins, 47 S.W.3d 486,493 (Tex. 2001).
An attorney ad litem is an attorney appointed to provide legal services to a child and who
owes the child “duties of undivided loyalty, confidentiality, and competent representation.” TEX.
FAM. CODE ANN. 9 107.001(2) (Vernon Supp. 2005). An attorney ad litem’s duties are set out
principally in sections 107.003 and 107.004. See id. 96 107.003-.004. An attorney ad litem who
fails to perform duties required by either section is subject to professional disciplinary action. See
id. $ 107.pO45.
Section 107.004(d) does not specifically state what it means to “meet” with the child or
person with whom the child resides. See id. 0 107.004(d). When words do not have a technical or
particular meaning by definition or otherwise, we are to give them their ordinary meanings. See TEX.
GOV’T CODE ANN. $ 3 11 .Ol 1 (Vernon 2005). In the context of a person meeting with another
person, the word commonly means “to come into the presence of,” “to come together with
[especially] at a particular time or place,” or “to come face-to-face.” MERRIAM WEBSTER’S
COLLEGIATEDICTIONARY723 (10th ed. 1993); see also Pitts v. State, 16 S.W. 189, 190 (Tex. Ct.
App. 1891, no pet.) (noting dictionary definition of the word “meet” as to “come together by mutual
approach, ” “to fall in with another,” “to come face to face,” “to converge”). In this sense, to “meet”
is to encounter in person.
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To “meet” may also mean “to enter into conference, argument, or personal dealings with.”
MERRIAMWEBSTER’SCOLLEGIATEDICTIONARY723 (10th ed. 1993). That sense of the word would
not necessarily exclude a telephonic conference. For example, in another context the Family Code
defines the related word “meeting” to mean “an in-person meeting or a meeting held by telephone
or other electronic medium.” See TEX. FAM. CODE ANN. 0 264.50 l(7) (Vernon 2002) (concerning
meetings of a child fatality review team committee). Thus, the common meaning of the word
“meet,” in isolation, does not resolve the question.
However, we are to read statutes as a whole and in light of related provisions. See Helena
Ckem. Co., 47 S.W.3d at 493. Accordingly, we review the duty to meet with the child in the context
of the attorney ad litem’s other statutory duties. Under section 107.003(a), an attorney ad litem has
the duty within a reasonable time after the appointment to “interview” (1) the child if the child is four
years of age or older, (2) persons with significant knowledge of the child’s history and condition, and
(3) the parties to the suit. See TEX. FAM. CODE ANN. $ 107.003(1)(A)(i)-(iii) (Vernon Supp. 2005).
The attorney must “seek to elicit in a developmentally appropriate manner the child’s expressed
objectives of representation.” Id. 5 107.003(1)(B).
Section 107.004 not only requires the attorney to meet with a child four years of age or older
before hearings, but also generally to “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.” Id. 5 107.004(a)(2).
Additionally, section 107.004 requires an attorney ad litem, “as appropriate, considering the nature
of the appointment,” to “become familiar with the American Bar Association’s standards ofpractice
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.” Id. 0
107.004(a)(3).
The standards and amendments referenced in the statute stress the importance of meeting
with a child in person. For example, standard C-l of the standard concerning abuse and neglect
cases states:
C-l. Meet With Child. Establishing and maintaining a relationship
with a child is the foundation of representation. Therefore,
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.
Commentary
Meeting with the child is important before court hearings and
case reviews. In addition, changes inplacement, school suspensions,
in-patient hospitalizations, and other similar changes warrant
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meeting again with the child. Such in-person meetings allow the
lawyer to explain to the child what is happening, what alternatives
might be available, and what will happen next. This also allows the
lawyer to assess the child’s circumstances, often leading to a greater
understanding of the case, which may lead to more creative solutions
in the child’s interest. A lawyer can learn a great dealfrom meeting
with child clients, including a preverbal child. See, e.g., JAMES
GARBARINO, ET ALL], WHAT CHILDREN CAN TELL US:
ELICITING, INTERPRETING, AND EVALUATING CRITICAL
INFORM TION FROM CHILDREN (1992).
AMERICANBAR ASSOCIATION,STANDARDSOFPRACTICEFORLAWYERSWHO REPRESENT CHILDREN
IN ABUSE AND NEGLECT CASES C- 1 (1996) at 7, available at http://www.abanet.org/child/
repstandwhole.pdf.2 To “[mleet with the child” under these standards requires an attorney to meet
in person with the child in order to facilitate communication and assess the child’s circumstances
to achieve a “greater understanding of the case.” Id. The statute appears to contemplate that an
attorney ad litem appointed for chapter 262 or chapter 263 purposes will meet in person with the
child, or if the child is under four years bf age, with the adult with whom the child ordinarily resides.
Consequently, a telephone interview would not satisfy the duty under section 107.004(d).
Section 107.004(e) relieves an attorney ad litem of the duty to comply with section
107.004(d) before a hearing if “the court finds at that hearing that the attorney ad litem has shown
good cause why the attorney ad litem’s compliance with that subsection is not feasible or in the best
interest of the child.” TEX. FAM. CODE ANN. 5 107.004(e) (Vernon Supp. 2005). You ask whether
the phrase “not feasible” in section 107.004(e) gives a court “meaningful discretion” to find that an
attorney showed good cause for not complying with section 107.004(d). See Request Letter, supra
note 1. The word “feasible” is not statutorily defined, but commonly means “capable ofbeing done.”
Am. Textile Mfis. Inst. v. Donovan, 452 U.S. 490, 508 (1981) (noting dictionary definitions of
“feasible” as “‘capable of being done, executed, or effected,“’ “‘[clapable of being done,
accomplished or carried out,“’ and “‘[t]hat may be done, performed or effected”‘) (citations omitted);
accord Harris County v. Smith, 96 S.W.3d 230, 235 (Tex. 2002) (equating “feasible” with
“practicable”); Tex. Dep ‘t of Human Servs. v. E. B., 802 S. W.2d 647,649 (Tex. 1990) (determining
that “whenever feasible” means “in any or every instance in which it is capable of being
accomplished”). As we are to apply the common meaning of words, see TEX. GOV’T CODE ANN.
6 311.011(a) (Vemon2005), we conclude that under section 107.004(e), a trial court’s discretion to
find good cause based on feasibility requires the court to find that compliance was not practicable
or capable of being done.
‘See also AMERICAN BAR ASSOCIATION, STANDARDSOF PRACTICEFOR LAWYERSWHO REPRESENTCHILDREN
m ABUSE AND NEGLECT CASES (Nat’1 Ass’n of Counsel for Children, Revised Version, amended Apr. 2 1, 1999) at 13,
available at http:l/www.naccchildlaw.orgidocumentslabastandardsnaccrevised.doc; AMERICAN BAR ASSOCMION,
SECTIONOF FMILY LAW STANDARDS OF PRACTICE FOR LAWYERS REPRESENTINGCHILDREN rivCUSTODY CASES III-E
(2003) at 4, available at http:/iwww.abanet.org/familyiApproved%2Ostandards%20practice.pdf:
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We note, however, that section 107.004(e) also permits a finding of good cause because
compliance would not be in the best interest of the child. See TEX. FAM. CODE ANN. 6 107.004(e)
(Vernon Supp. 2005). And under that standard we believe a trial court could consider other duties
of the attorney ad litem, such as the duty to take actions necessary to expedite proceedings. See id
$ 107.003(1)(G). Consequently, we conclude that a court has discretion under 107.004(e) to
determine that an attorney has established good cause for noncompliance if it finds that compliance
was impracticable, not capable of being done or was not in the best interest of the child. Of course,
whether an attorney has demonstrated good cause will depend on the facts of the particular case. See
Furr’s Supermarkets, Inc., v. Bethune, 53 S.W.3d 375,376-77 (Tex. 2001) (observing in another
context that “‘[glood cause’ is an elusive concept that varies from case to case”).
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SUMMARY
Texas Family Code section 107.004(d) requires an attorney
ad litem appointed for chapter 262 or chapter 263 purposes to meet
in person with a child before each court hearing or, if the child is
under four years of age, with the adult with whom the child ordinarily
resides. This statutory duty may not be satisfied by conducting
a telephone interview. A court has discretion to determine that an
attorney ad litem has established good cause for noncompliance with
that section if the court finds that compliance was impracticable, not
capable of being done or was not in the best interest of the child.
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee