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The Texas Supreme Court Rules Advisory Committee on March 8 recommended that the court change the parental notification rules to make it clear that anyone appointed as guardian ad litem in those cases represents the minor seeking to have an abortion without telling her parents. The recommendation, which now goes to the high court, defines the role of the guardian ad litem in Texas Family Code Chapter 33 proceedings. Eighth Court of Appeals Justice Ann McClure, chairwoman of a subcommittee that drafted the proposal, said the amendments emphasize more clearly what the guardian ad litem’s role is and should be in these types of cases. “Evidently that clarification was necessary,” said Diana Philip, executive director of Jane’s Due Process Inc., a nonprofit organization dedicated to promoting the fair application of the judicial bypass option of the Texas parental notification law. Jane’s Due Process, in its annual report for 2001, said some guardians ad litem reportedly have said that they represent the fetus or the absent parents in the proceedings instead of the “best interests of the minor.” Passed by the Legislature in 1999, the law requires that the parents of a girl younger than 18 be notified before their daughter has an abortion, unless a judge waives the notification requirement. But according to the Jane’s Due Process report, all minors in Texas are not being informed about the judicial bypass option. “Social service agencies, crisis intervention hotlines and family planning clinics do not always give complete information to minors about the state parental notification law,” the group reported. When a girl applies for a waiver, a judge must appoint an attorney as an advocate for her wishes and a guardian ad litem to determine what is in her best interests. While attorneys commonly are appointed to serve in both roles in some counties, McClure said she prefers to have two different individuals appointed as the girl’s attorney and guardian ad litem because of the inherent conflict in the roles. Under the law, the guardian ad litem can be the girl’s grandmother or another close relative, a psychiatrist or psychologist, a Texas Department of Protective and Regulatory Services employee, a member of the clergy or “another appropriate person selected by court.” Chapter 33 requires a guardian ad litem to report to law enforcement authorities if the girl claims to have been sexually abused but otherwise imposes a duty on that individual to keep the girl’s identify confidential. McClure said the statute is “absolutely silent” whether the guardian ad litem is entitled to notice of anything other than the court hearing on the girl’s application for a waiver. The guardian also is unable to get any paperwork on the case other than the court’s ruling, she said. If approved by the Texas Supreme Court, the committee’s recommendations would entitle the guardian ad litem to receive all amicus briefs, motions and other actions filed by the girl’s attorney, and court orders filed in the case. In addition, the guardian could get a transcript of the hearing. RECORDS DESTROYED? The committee also recommended a time frame for the mandatory destruction of all court records pertaining to parental notification cases to assure confidentiality. Under the proposal, the case file — including the court reporter’s notes — must be retained for a year after the final court action in the case. Clerks at the trial or appellate court level would be required to destroy the records within 60 days after the end of the retention period, unless a judge ordered the destruction earlier. Several members of the advisory committee said they were uncomfortable with destroying the records. “Somebody is going to argue this looks like not only that we’re not going to tell you, but we’re going to wipe out the evidence real quick,” said Scott Brister, chief justice of Houston’s 14th Court of Appeals. Brister said his preference is to lobby the Legislature for more money to provide better storage places for records. Others argued that the records must be destroyed to assure that a girl’s anonymity is protected. “The bottom line is we need to protect the girl,” Phil Hardberger, chief justice of San Antonio’s 4th Court of Appeals, told his colleagues on the committee. “As long as the record is there, the risk is there,” Hardberger said. However, the proposal conflicts with a provision in state law, making it questionable whether the state supreme court can approve the rule. Texas Supreme Court Justice Nathan Hecht says the court may be unable to enact part of the rule because � 52.046 of the Government Code requires a court reporter’s notes to be preserved for three years. “Do the concerns for confidentiality in the Family Code give us authority to shorten that period, when we wouldn’t have it otherwise?” Hecht asks.

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