ETHICAL ISSUES IN A DFPS CASE : BEST INTEREST DURING HEARINGS AND TRIAL.

ETHICAL CONSIDERATIONS? The Texas Disciplinary Rules of Professional Conduct Loyalty Competence Zealous Advocacy

ETHICAL CONSIDERATIONS? The Texas Disciplinary Rules of Professional Conduct Know your Role ➗ Loyalty to a client Rule 1.06 Attorney Ad Litem §107.003 Guardian Ad Litem §107.002

Competent & Diligent Representation Rule 1.01 The Texas Disciplinary Rules of Professional Conduct Competent & Diligent Representation Rule 1.01

WHEN DOES BEST INTEREST MATTER? (1) ADVERSARY/SHOW CAUSE (2) HEARINGS (Status/Permanency/Motions) (3) TRIAL

Why Does Best Interest matter? Judges Best Interest of the Child In TEXAS, the Best Interest of the child shall be the primary consideration of the court in determining issues of Conservatorship and Possession of and Access to the child TEXAS FAMILY CODE 153.002

§264.107 PLACEMENT The department is required to consider whether a placement is in the best interest of the child.   -Relative -Kinship -Foster home -Residential Treatment Center -Psychiatric Hospital ✖ §262.114(b) (b)  The department may place a child with a relative or other designated individual identified on the proposed child placement resources form if the department determines that the placement is in the best interest of the child.  The department may place the child with the relative or designated individual before conducting the background and criminal history check or home study required under Subsection (a).  The department shall provide a copy of an informational manual required under Section 261.3071 to the relative or other designated caregiver at the time of the child's placement.

COURT-Zealous Advocacy Evidence Attorney Representing a Parent TFC §107.013

Adversary Hearing §262.201, the Court at the conclusion of the hearing : (e) The court shall place a child removed from the child’s custodial parent with the child’s noncustodial parent or with a relative of the child if placement with the noncustodial parent is inappropriate, unless placement with noncustodial parent or relative is not in the best interest of the child.

TFC §263.307 Factors in Determining Best Interest (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of harm to the child; (4) whether child has been victim of repeated harm…..

Best Interest Factors-Cont (5) whether child is fearful of living in or returning home; (6) the results of psychiatric, psychological, or development evaluations of the child, the child’s parents, other members, or others who have access to child’s home; (7) whether there is a history of abusive or assaultive conduct by family or others

Best Interest factors-Cont (8) Whether there is a history of substance abuse by family or others who have access to the child home; (9) whether the perpetrator of the harm to the child is identified; (10) 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;

Best Interest Factors * (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time (12) whether the child’s family demonstrates adequate parenting skills, ….. (13) whether an adequate social support system consisting of an extended family and friends is available to the child.

Termination Trial Have to prove by clear and convincing evidence statutory grounds §161.001 A -T and TDFPS must prove under §161.001(2) “that termination is in the best interest of the child.”

Texas Case Law- BEST INTEREST Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982) Cole v. Cole, 880 S.W.2d 477 (Tex App-Forth Worth 1994, no writ)

Resources TEXAS FAMILY CODE The Texas Disciplinary Rules of Professional Conduct Texas Lawyers Creed * Case Law Updates

CONCLUSION : Just Do the Right Thing “I AM A LAWYER. I am entrusted by the People to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right” The Texas Lawyer’s Creed