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Confidential proceedings in which pregnant girls younger than 18 ask a judge to let them have an abortion without notifying their parents can become adversarial, according to some lawyers who represent the minors. In some cases, judges are appointing persons with a political agenda to serve as guardians ad litem to advocate for what is best for girls seeking a judicial bypass of the state’s parental notification law, Chapter 33 of the Texas Family Code, allege lawyers with the Texas nonprofit group Jane’s Due Process. The law requires a judge to appoint a guardian ad litem for a minor in a bypass proceeding, but leaves it up to the judge whom to appoint. The law says the ad litem can be a psychiatrist or psychologist, an “appropriate” employee of the Department of Protective and Regulatory Services, a member of the clergy or another “appropriate” person selected by the court. “I’ve run into cases where the [guardians] ad litem seemed to have a different agenda than the best interests of the child. They seemed to be advocates for pro-life,” says Dallas solo Michael Linz, who is part of the Jane’s Due Process network of attorneys. Formed in the summer of 2000, the nonprofit organization serves as a legal referral service for girls who want to ask a judge for a bypass. About 100 attorneys are part of the network, says Diana Philip, the group’s executive director. The attorneys say their role is to obtain judicial bypasses for their clients. The parental notification law, which took effect on Jan. 1, 2000, requires a health care provider to inform parents 48 hours in advance of performing an abortion on their minor daughter, unless a judge waives the notification requirement. Because the proceedings are confidential, no one knows the exact number of bypass cases that have been heard by judges around the state. The Texas Department of Health, which is required by law to pay the costs associated with the cases, reports that the state paid $248,848 for 368 cases from the effective date of the law through July 12 of this year. The average cost per case is $676, TDH reports. Philip says the number of cases is probably higher because some lawyers don’t bill for their services. Lawyers with Jane’s Due Process say there are problems with the law and the rules that the Texas Supreme Court adopted to implement it. Susan Hays, the organization’s board president and an associate with Akin, Gump, Strauss, Hauer & Feld in Dallas, has asked a subcommittee of the high court’s Rules Advisory Committee to take another look at the rules at a meeting to be held within the next two months. One of the group’s concerns, several of the attorneys say, is a rule change that became effective in March, allowing general and case-specific amicus briefs to be filed in bypass proceedings on appeal. Rita Lucido, a partner in Houston’s Cothrun & Lucido, says general briefs filed by organizations opposed to abortion urge a court to deny a bypass without knowing the facts because the cases are confidential. “They don’t know the facts of a case,” Lucido says. “So what are they arguing?” Collyn Peddie, of counsel at Beirne, Maynard & Parsons in Houston, says the March rule change that allows a nonparty — presumably the guardian ad litem — to file a case-specific brief increases the potential that the proceedings will become adversarial. “You have the potential for putting the girl at odds with the guardian ad litem before the court of appeals,” Peddie says. However, opinions differ on the role of the guardian ad litem in bypass proceedings. Hays says the proceedings turn adversarial if the guardian ad litem sees his or her role as an advocate for the fetus or the girl’s parents. “They become our opposing counsel,” she says. “That’s not how it’s supposed to work.” The guardian ad litem’s role is to interview the girl, make an assessment of her situation and testify in court, Hays says. Some who accept appointments are grilling girls in court about their decision to have an abortion instead of having a baby, she says. “These kids need to get on the stand and describe abortion like a medical school professor. They’re interrogating to that depth,” Hays says. Lucido says a guardian ad litem in one Harris County case tried to find any way possible to keep the court from granting a bypass, even questioning whether the girl was pregnant. The girl was granted a bypass even though the ad litem asked the judge not to do it, she says. Kip Allison, a partner in Allison, Johnson & Williamson in Dallas, has served as a guardian ad litem on three judicial bypass cases and says he believes his job is to ensure that the proceedings are conducted according to the guidelines set by the state supreme court in its Jane Doe opinions last year. The high court’s Feb. 25, 2000, decision in In Re Jane Doe established three findings a trial court must make to grant a bypass: whether the minor has obtained information from a health care provider about the risks associated with abortion and understands the risks; understands the alternatives to abortion and their implications; and is aware of the emotional and psychological aspects of undergoing an abortion. The state supreme court continues to hear appeals of notification rulings. On Aug. 9, the court affirmed a court of appeals order denying a bypass without issuing an opinion in In Re Jane Doe 8. Allison says it was originally thought that a bypass would be granted if the girl testified that she was fearful of what her parents would do if she told them she was pregnant. But he says the Supreme Court’s Jane Doe decisions place “a more distinct burden” on the applicant to state her awareness of the consequences of her decision. Part of the guardian ad litem’s job, Allison says, is to make sure the girl understands that she faces risks in terminating a pregnancy or giving birth. The girl also should understand the emotional impact of her decision and know her options, he says. Allison says a girl should see a doctor who specializes in obstetrics and gynecology and meet with counselors who have different views about abortion. “The guardian’s role is to ensure that the process has some kind of integrity,” he says. Austin solo Sidney Childress, who has served as an attorney on numerous judicial bypass cases, says the most important thing is for a girl to see a medical provider. Girls are required to show that they’ve considered alternatives to abortion, but they don’t have to justify the decision they’ve made, he says. “They have to show it’s an informed decision, that they’re not making it impulsively,” Childress says. Childress says he believes the intent of the law is to have an adult who already has a relationship with the girl serve as the guardian ad litem. If no one close to the girl is available, he says, the girl’s lawyer should serve in a dual role. Another Austin solo, Ann del Llano, has served as both attorney and guardian ad litem on some bypass cases, and says she considers it important to determine whether girls consider all their options, including having the baby. “I do not feel obligated to bring her pro-life propaganda and force it on her,” del Llano says. Allison says he doesn’t think of a pregnant minor’s situation in terms of a moral issue. “I don’t think within the law it’s a moral decision,” he says. But Allison says the girl should consider the long-term consequences of her decision, whether she chooses to have an abortion or to have a child whom she gives up for adoption. State Rep. Steve Wolens, D-Dallas, who helped craft the parental notification legislation in 1999, says the guardian ad litem is supposed to represent the interests of the child. But having more than one advocate for the minor means there will be differing points of view, says Wolens, a partner in Dallas-based Baron & Budd. Wolens says the idea isn’t necessarily to make the proceedings adversarial but to give judges as much information as possible before they make decisions. “We have to hope the judges will be fair,” he says. CHANGES UNLIKELY Lawyers in the Jane’s Due Process network have a number of other concerns about the bypass procedures. Hays asked the rules advisory subcommittee to require the court reporter, on request, to supply the record of the trial court hearing directly to the minor’s attorney not more than 24 hours after the hearing. In most cases, she says, the court reporter doesn’t begin preparing the transcript until a notice of appeal is filed with the court of appeals and will not give the record to the attorney. Attorneys routinely have to request postponements at the intermediate appellate courts to have time to prepare briefs, Hays says, noting that the girls who seek a bypass are on a tight time line. The Jane’s Due Process lawyers also urge the subcommittee to pass a rule ensuring that the verification page signed by the minor and filed with a district clerk is not distributed to persons unauthorized by the law to know the minor’s identity. Neither the judges who hear cases nor guardians ad litem should have access to the documents, says Hays, who also suggests that clerks’ offices be given a deadline for destroying such records. The law does not set a deadline for such destruction. However, it’s the confidentiality required in such cases that can cause problems for lawyers. Peddie says the confidentiality prevents a lawyer from doing a thorough check for conflicts of interest. “The horror story is, what if it’s the daughter of your best client,” she says. Jane’s Due Process lawyers also cite concerns about applying the notification requirements to girls who have no one to notify. Philip says one of every eight girls who call the organization’s hotline reports being unable to contact either parent. They are “de facto orphans,” Hays says. They may live with relatives but do not have a legal guardian, and they still must seek a bypass to get an abortion, she says. Lucido says she represented a 17-year-old Honduran girl who came to the United States with an aunt, who was only three years her senior, after both of them were displaced by a hurricane. The girl was separated from her mother during the hurricane and does not know her father, she says. “Now who is she going to notify?” Lucido asks. Ann Crawford McClure, a justice on El Paso’s 8th Court of Appeals, says the bypass rules subcommittee that she chairs is interested in hearing about the problems faced by girls like Lucido’s client. But McClure says she suspects that is an issue the Texas Supreme Court would leave up to the Legislature. State Rep. Dianne Delisi, a Temple, Texas, Republican who sponsored the parental notification bill in the state House, says people who provide care for minors but aren’t their legal guardians should take steps to establish guardianship status. But Philip says people in this situation often don’t have the money to hire a lawyer to assist them in becoming a guardian. If there are flaws in the law, they aren’t likely to be corrected anytime soon. Both Wolens and Delisi say they don’t foresee the Legislature making any changes in the law. Wolens says he doesn’t think those who support restrictions on abortion would want to change the law and run the risk of making it constitutionally deficient.

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