Right to counsel

In state-initiated termination of parental rights matters in Texas, children have the right to both an attorney ad litem, Tex. Fam. Code Ann. § 107.012, and a guardian ad litem, Tex. Fam. Code § 107.011. A dual role is permitted. In other words, the attorney ad litem (responsible for advocating for the child’s wishes) may also serve as guardian ad litem (GAL) (responsible for best interest representation). Texas Family Code § 107.011(b) states:

(b) The guardian ad litem appointed for a child under this section may be:

(1) a charitable organization composed of volunteer advocates or an individual volunteer advocate appointed under Subchapter C;
(2) an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or
(3) an attorney appointed in the dual role.

(emphasis added); see also Tex. Fam. Code § 107.0125(a) (“In order to comply with the mandatory appointment of a guardian ad litem under Section 107.011 and the mandatory appointment of an attorney ad litem under Section 107.012, the court may appoint an attorney to serve in the dual role.”). While section 107.012 states that the attorney ad litem represents “the interests of the child”, and section 107.011, regarding the role of the GAL, specifies that the GAL “represent[s] the best interests of the child”, the terms may at times be a distinction without a difference. (emphasis added). Texas Family Code § 1007.004(a) provides:

Except as otherwise provided by this chapter, the attorney ad litem appointed for a child shall, in a developmentally appropriate manner: … 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…”

Tex. Fam. Code § 1007.004(a) (emphasis added). The exceptions to client-directed representation are significant. Section 107.008 explicitly outlines situations where the attorney ad litem is permitted to substitute their own judgment for that of their child-client’s:

(a) An attorney ad litem appointed to represent a child or an attorney appointed in the dual role may determine that the child cannot meaningfully formulate the child’s objectives of representation in a case because the child:

(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.

(b) An attorney ad litem or an attorney appointed in the dual role who determines that the child cannot meaningfully formulate the child’s expressed objectives of representation may present to the court a position that the attorney determines will serve the best interests of the child.

(c) 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, an attorney ad litem who determines that the child cannot meaningfully formulate the child’s expressed objectives of representation:

(1) shall consult with the guardian ad litem and, without being bound by the guardian ad litem’s opinion or recommendation, ensure that the guardian ad litem’s opinion and basis for any recommendation regarding the best interests of the child are presented to the court; and
(2) may present to the court a position that the attorney determines will serve the best interests of the child.

An unpublished decision from the Court of Appeals of Texas seems to affirm the possibility that an attorney ad litem, in theory serving as client-directed counsel, is not in actuality obligated to further the child’s expressed goals: “While both the attorney and guardian ad litem must consider the child’s expressed objectives, neither are bound by the child’s wishes, and must instead advance the child’s best interest. See id. § 107.002. (West Supp. 2023), § .008.” In re A.S., No. 11-24-00168-CV, 2024 WL 3528125 (Tex. Ct. App. July 25, 2024) (emphasis added) (summarily dismissing appellant’s contention that the trial court had abused its discretion by failing to appoint a separate guardian ad litem where the attorney, who served in a dual role, had a conflict of interest).

Furthermore, section 107.0125, outlining the dual role model, appears to permit–but not require–the court to appoint a GAL in order to bifurcate the client-directed and best interest roles: “If the court appoints an attorney to serve in the dual role under this section, the court may at any time during the pendency of the suit appoint another person to serve as guardian ad litem for the child and restrict the attorney to acting as an attorney ad litem for the child.” Id. at (b) (emphasis added). Unlike in many other states that permit a dual role (also known as a “hybrid model”), the statute does not appear to impose an obligation on the appointed attorney to bring a conflict of interest to the court’s attention. Nor does the statute appear to require the court to bifurcate roles in the event of a conflict. See Nat’l Ass’n of Counsel for Children, Recommendations for Legal Representation of Children and Youth in Neglect and Abuse Proceedings (Jan. 2024) (defining the “GAL Hybrid Model” and discussing the typical mechanisms of such models on pages 5 and 7, respectively).

Accordingly, we have classified the “right to counsel” as “qualified” since there is no guarantee of client-directed representation. To read the brief submitted by the appellants in In re A.S., see Joint Petition of Parents for Writ of Mandamus, In re A.S., No. 11-24-00168-CV, 2024 WL 3528125 (Tex. Ct. App. July 25, 2024).