What Should CASA Testify About?

By Charlie Childress, Family Law Specialist, Children’s Rights Clinic, University of Texas, Austin

To remind you about the case we began discussing in the Summer 2002 Heartbeat, the Austin Court of Appeals in Horvatich v.Texas Department of Protective and Regulatory Services, No. 03-01- 00248-CV, 78 S.W.3d 594 (Tex.App.- Austin 2002, n.p.h.), held the evidence in that case was factually insufficient to support the trial judge's finding that termination of the mother's parental rights was in the best interests of her three children. As the opinion described the factual background, the children were removed in late April of 1999. "After August 1999, Ms. Horvatich 'disappeared' for several months, and neither her family nor the Department knew her whereabouts. She eventually was arrested for possession of cocaine and, at the time of this trial, was on probation as an inpatient at a drug treatment facility in Dallas. She attended the trial, which was held in February 2001, and admitted that she had not contacted her children during the approximately eighteen intervening months." (opinion at p. 5).

The CASA did not ask to testify, nor did the department call her as a witness.The only input the CASA provided at trial was an unsworn statement with no supporting testimony that parental rights should be terminated.The judgment of termination was reversed and remanded for a new trial.

Every CASA volunteer is appointed as an "advocate on behalf of the child." Family Code § 107.031(a). In addition, a CASA appointed as GAL is charged with the responsibility "to represent the best interests of the child." Family Code § 107.001(b). A CASA may carry out these duties by testifying in court concerning the "best interest of the child." Family Code § 107.002(c)(6). But what should a CASA testify about? "Best interest" would seem to be a natural subject for the CASA volunteer to address. The courts commonly look to a set of guidelines, called the "Holley factors", in evaluating the best interest of a child.

Those factors, as stated in Horvatich, include:

the desires of the child;
the emotional and physical needs of the child now and in the future;
the emotional and physical danger to the child now and in the future;
the parental abilities of the individuals seeking custody;
the programs available to assist these individuals to promote the best interest of the child;
the plans for the child by these individuals or by the agency seeking custody;
the stability of the home or proposed placement;
the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
any excuse for the acts or omissions of the parent …

“This list of relevant considerations is not exhaustive; other factors may be considered when appropriate. …Likewise, a fact finder is not required to consider all of the listed factors. (citations omitted)."

The Family Code also provides specific "factors" to be considered in determining best interest in a CPS case. These statutory factors were not mentioned in the Horvatich opinion, and may not have been brought to the court's attention by the parties to that case.

§ 263.307. Factors in Determining Best Interest of Child (a) In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest. (b) The following factors should be considered by the court, the department, and other authorized agencies in determining whether the child's parents are willing and able to provide the child with a safe environment:

the child's age and physical and mental vulnerabilities;
the frequency and nature of out-of-home placements;
the magnitude, frequency, and circumstances of the harm to the child;
whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency;
whether the child is fearful of living in or returning to the child's home;
the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home;
whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home;
whether there is a history of substance abuse by the child's family or others who have access to the child's home;
whether the perpetrator of the harm to the child is identified;
the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;
the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time;
whether the child's family demonstrates adequate parenting skills, including providing the child and other children under the family's care with:
- minimally adequate health and nutritional care;
- care, nurturance, and appropriate discipline consistent with the child's physical and psychological development;
- guidance and supervision consistent with the child's safety;
- a safe physical home environment;
- protection from repeated exposure to violence even though the violence may not be directed at the child; and
- an understanding of the child's needs and capabilities; and
whether an adequate social support system consisting of an extended family and friends is available to the child.

(c) In the case of a child 16 years of age or older, the following guidelines should be considered by the court in determining whether to adopt the permanency plan submitted by the department:

whether the permanency plan submitted to the court includes the services planned for the child to make the transition from foster care to independent living; and
whether this transition is in the best interest of the child.

The Holley factors and statutory guidelines for best interest analysis provide the CASA with a road map of the evidence that needs to be brought out in court to ensure that the best interests of the child are addressed by the court.

A CASA is in a unique position to testify about the "best interest" factors the court must consider. First, with respect to the Holley factors, the CASA should have first-hand information about:

the desires of the child,
the emotional and physical needs of the child now and in the future,
the emotional and physical danger to the child now and in the future,
programs available to assist individuals that might be granted custody to promote the best interest of the child,
plans for the child by these individuals or by the agency seeking custody, and
the stability of the home or proposed placement.

Second, the CASA should review the statutory factors in section 263.307 (and may have to point out the statute to counsel and the court) in order to establish a proposed resolution of the case that would be most likely to result in "the prompt and permanent placement of the child in a safe environment."

We can only assume that the CASA in Horvatich had good reasons for the opinion that the parental rights to the children should be terminated. However, since that opinion was given as an unsworn statement and without any supporting testimony, it constituted no evidence of "best interest" that could support the trial court's judgment.

Suppose, instead, that the CASA had testified under oath about (1) the mental and emotional condition of the children, (2) the children's prospects for adoption or another stable, safe and permanent placement if termination was granted, and (3) whether the mother's post-arrest substance abuse treatment demonstrated, from the standpoint of the children's needs, a "willingness and ability of the [mother] to effect positive environmental and personal changes within a reasonable period of time." Family Code § 263.307(b)(11).

If that evidence had been in the record, the Horvatich children might now be eligible for adoption rather than simply awaiting retrial.