Can a Texas attorney ad litem meet with a foster child by phone before a court hearing, or does the law require an in-person meeting?

TX AG Opinion GA-0406: Does a phone call satisfy an attorney ad litem's duty to meet with a child?

Plain-English summary

In 2005 the Legislature added a duty for attorneys ad litem appointed to represent children in child-protection cases (suits under Family Code chapter 262 or 263). The new Family Code section 107.004(d) said the attorney "shall meet" before each court hearing with the child, or, if the child is younger than four, with the adult the child ordinarily lives with. Two committee chairs asked the Attorney General two questions: does a telephone interview count as a "meet," and does subsection (e), which lets a court excuse the duty for good cause, give the court any real discretion.

On the first question, the opinion concluded a phone call does not satisfy the duty. The word "meet" can sometimes include a telephone conference, so the dictionary alone did not settle it. But the opinion read the statute as a whole. The same chapter spells out an attorney ad litem's broader duties, and section 107.004 tells the attorney to become familiar with the American Bar Association standards for lawyers who represent children. Those standards stress meeting with the child in person, because face-to-face contact lets the lawyer build a relationship, explain what is happening, and assess the child's situation. Read against that backdrop, "meet" in section 107.004(d) means an in-person meeting.

On the second question, the opinion concluded the good-cause exception in subsection (e) does give the court meaningful discretion. The statute lets a court excuse compliance if it finds the attorney showed good cause that compliance was "not feasible" or not in the child's best interest. "Feasible" commonly means capable of being done or practicable, so a court may find good cause when compliance was impracticable or not capable of being done, and separately when compliance would not serve the child's best interest. Whether good cause exists depends on the facts of each case.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The duties of attorneys ad litem in Texas child-protection cases sit in a part of the Family Code that the Legislature revisits often. The section numbers, the meeting requirement, and the good-cause exception described here may have been amended or renumbered since 2006. Anyone handling a current case should check the present text of the Family Code rather than rely on this opinion's reading of the 2005 version.

Who this opinion affected (as of 2006)

Attorneys ad litem in child-protection cases: The opinion told them the section 107.004(d) duty to meet with the child before each hearing required an in-person meeting, not a phone call. An attorney who failed to perform the required duties was subject to professional disciplinary action.

Trial judges handling chapter 262 and 263 cases: It told them subsection (e) gave them genuine discretion to excuse the meeting duty for good cause, when compliance was impracticable or not capable of being done, or when meeting would not be in the child's best interest.

Children and the adults caring for them: It meant the child (or, for a child under four, the caregiver the child lived with) was entitled to an in-person meeting with the child's appointed attorney before each court hearing, absent a good-cause finding.

Common questions

Did the opinion say a phone call is ever enough to "meet" a child under this statute?
No. It concluded that, read in context with the attorney ad litem's other duties and the ABA standards the statute references, "meet" in section 107.004(d) means an in-person meeting, so a telephone interview did not satisfy the duty.

Could an attorney ever skip the in-person meeting?
Yes, with a court's permission. Subsection (e) let a court excuse the duty before a hearing if it found the attorney showed good cause that compliance was not feasible or not in the child's best interest.

What did "not feasible" mean?
The opinion read "feasible" by its common meaning, capable of being done or practicable, so a court could find good cause on feasibility grounds if compliance was impracticable or not capable of being done.

Who decided whether good cause existed?
The trial court, based on the facts of the particular case. The opinion noted that good cause "is an elusive concept that varies from case to case."

Background and statutory framework

During the 2005 regular session the Legislature made several changes to the state's child and adult protective services and added the meeting duty at issue (Act of May 29, 2005, 79th Leg., R.S., ch. 268, codified at Tex. Fam. Code Ann. § 107.004(d)-(e) (Vernon Supp. 2005)). An attorney ad litem is an attorney appointed to provide legal services to a child and owes the child duties of undivided loyalty, confidentiality, and competent representation (Tex. Fam. Code Ann. § 107.001(2) (Vernon Supp. 2005)). The attorney's duties are set out principally in sections 107.003 and 107.004, and an attorney who fails to perform those duties is subject to professional disciplinary action (id. §§ 107.003-.004; id. § 107.0045).

The primary goal of statutory construction is to give effect to legislative intent, reading a statute as a whole rather than as isolated provisions, and not giving one provision a meaning out of harmony with the others (Tex. Natural Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368 (Tex. 2005); City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001); Tex. Gov't Code Ann. § 311.011 (Vernon 2005)). The word "meet" can mean to come face-to-face or, alternatively, to enter into conference, which would not necessarily exclude a telephone call (Pitts v. State, 16 S.W. 189 (Tex. Ct. App. 1891, no pet.)). Because the dictionary did not resolve the question, the opinion looked to the attorney ad litem's related duties, including the duty under section 107.004(a)(3) to become familiar with the American Bar Association standards of practice for lawyers who represent children, which stress in-person meetings (Tex. Fam. Code Ann. § 107.004(a)(2), (a)(3); § 107.003(1)(A)(i)-(iii), (1)(B) (Vernon Supp. 2005)). On the good-cause question, the opinion took the common meaning of "feasible" as capable of being done or practicable (Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981); Harris County v. Smith, 96 S.W.3d 230 (Tex. 2002); Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647 (Tex. 1990)), and noted a court could also weigh the attorney's other duties, such as the duty to help expedite proceedings (Tex. Fam. Code Ann. § 107.003(1)(G)), with good cause varying from case to case (Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375 (Tex. 2001)).

Citations

Statutes:

• Tex. Fam. Code Ann. §§ 107.001(2), 107.003-.004, 107.003(1)(A)(i)-(iii), (1)(B), (1)(G), 107.004(a)(2), (a)(3), 107.004(d)-(e), 107.0045 (Vernon Supp. 2005)
• Tex. Fam. Code Ann. § 264.501(7) (Vernon 2002)
• Tex. Gov't Code Ann. § 311.011 (Vernon 2005)
• Act of May 29, 2005, 79th Leg., R.S., ch. 268

Cases:

• Tex. Natural Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368 (Tex. 2005)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)
• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)
• Pitts v. State, 16 S.W. 189 (Tex. Ct. App. 1891, no pet.)
• Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981)
• Harris County v. Smith, 96 S.W.3d 230 (Tex. 2002)
• Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647 (Tex. 1990)
• Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375 (Tex. 2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0406
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0406.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 27, 2006

The Honorable Jane Nelson
Chair, Committee on Health and Human Services
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

The Honorable Suzanna Hupp
Chair, Committee on Human Services
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0406

Re: 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; whether a court has meaningful discretion to determine that the attorney ad litem has shown good cause for not complying with this section (RQ-0387-GA)

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.[1] 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, § 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:

(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. § 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. § 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 Res. 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. § 311.011 (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 Chem. 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. § 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. §§ 107.003-.004. An attorney ad litem who fails to perform duties required by either section is subject to professional disciplinary action. See id. § 107.0045.

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. § 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. § 311.011 (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 COLLEGIATE DICTIONARY 723 (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.

To "meet" may also mean "to enter into conference, argument, or personal dealings with." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 723 (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. § 264.501(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 Chem. 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. § 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. § 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 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." Id. § 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-1 of the standard concerning abuse and neglect cases states:

C-1. 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 in placement, school suspensions, in-patient hospitalizations, and other similar changes warrant 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 deal from meeting with child clients, including a preverbal child. See, e.g., JAMES GARBARINO, ET AL., WHAT CHILDREN CAN TELL US: ELICITING, INTERPRETING, AND EVALUATING CRITICAL INFORMATION FROM CHILDREN (1992).

AMERICAN BAR ASSOCIATION, STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES C-1 (1996) at 7, available at http://www.abanet.org/child/repstandwhole.pdf.[2] To "[m]eet 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 of 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. § 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 of being done." Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 508 (1981) (noting dictionary definitions of "feasible" as "'capable of being done, executed, or effected,'" "'[c]apable 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. § 311.011(a) (Vernon 2005), 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.

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. § 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 "'[g]ood cause' is an elusive concept that varies from case to case").

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.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

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

Footnotes

1. See Letter from 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].

2. See also AMERICAN BAR ASSOCIATION, STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES (Nat'l Ass'n of Counsel for Children, Revised Version, amended Apr. 21, 1999) at 13, available at http://www.naccchildlaw.org/documents/abastandardsnaccrevised.doc; AMERICAN BAR ASSOCIATION, SECTION OF FAMILY LAW STANDARDS OF PRACTICE FOR LAWYERS REPRESENTING CHILDREN IN CUSTODY CASES III-E (2003) at 4, available at http://www.abanet.org/family/Approved%20standards%20practice.pdf.