Making Your Voice Heard on Behalf of the Child
On May 16, 2002, the Austin Court of Appeals in Horvatich V.Texas Department Of Protective And Regulatory Services, No. 03-01-00248-CV,__ S.W.3d __ (Tex.App.-Austin 2002, n.p.h.) held that 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. The judgment of termination was reversed and remanded for a new trial.
The children were removed in late April 1999. In August of 1999, the mother disappeared for several months. She was later arrested for possession of cocaine.The termination trial was held in February of 2001.The mother was on probation in an inpatient drug treatment facility, but did attend the trial. She admitted that she had not contacted her children in about 18 months. (opinion at p. 5)
The court does not explain how the case apparently took more than 21 months to get to trial, even though it would appear that the 18-month deadline under the permanency statute would have applied and required dismissal of the Department's suit. The children, who have now been in state custody for more than three years, will have to wait for permanency until "the Department can fully consider Ms. Horvatich's progress..." (opinion at p. 13) and "all witnesses with knowledge of relevant facts are able to testify, [so that] the court may more adequately consider the termination of Ms. Horvatich's parental rights versus the other alternatives available to provide for the safety and stability of these children." (opinion at p. 15) We have no way of knowing how long it will take to get these children into a safe, permanent home. It may take several months for the case to be sent back to the trial court. Then casework, discovery and trial scheduling will all be required before it can be tried again.
So how does this involve CASA? Two of the Department's crucial witnesses in the case were not allowed to testify due to a failure to properly "designate" them as witnesses. "The Department then rested its case in chief, without having provided any testimony regarding the condition of the children for at least ten months preceding trial, how they were doing in foster care, whether they were being considered for adoption, the Department's plan for the children, including whether the Department would attempt to place the three siblings together, or why the Department had decided against placement with the children's maternal grandmother." (opinion at p. 7). Here is what the CASA and the Attorney Ad Litem contributed: "After hearing all of the testimony, the trial court asked for the opinion of the children's guardian ad litem, a CASA representative, who gave an unsworn statement that 'the parental rights to these children [should] be terminated so that these children can go on to a stable life.' The trial court also heard argument but no evidence from [the children's attorney ad litem], who voiced his doubts [about the evidence] that termination was in the best interest of the children." (opinion at p. 8).
The result on appeal might have been different if the CASA had insisted on testifying, or the Attorney ad Litem had called and examined the CASA about the basis of the opinion that termination was in the best interest of the child. Can a CASA do that? Yes. One of the enumerated powers of a Guardian ad Litem who is not also acting as the attorney ad litem is to "testify in court … regarding the recommendations concerning the actions that the guardian ad litem considers to be in the best interest of the child, including giving reasons for the guardian ad litem's opposition if the guardian ad litem does not agree to the terms of a proposed order." Family Code § 107.002(c)(6). So what is that about not agreeing to a proposed order? In this case, the CASA clearly did not agree to the mother's "proposal" that termination be denied, nor with the attorney ad litem's contention that there was insufficient evidence that the children's best interest would be served by termination.
In a CPS suit, it is the special responsibility of the guardian ad litem to represent the best interests of the child. Family Code § 107.001(b). When those interests are threatened, a CASA has both the duty and the right to speak up.
