### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00657- CV

Clif ford Zeifman, Appellant

v. Laurie J. Nowl in, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-0 8-0 0087 7, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

C O N C U R R

I N G O P I N I O N

I concur in the judgme nt, affir

ming the tr ial court’s judgment. I ag ree that the trial
court did not err in g ranting su m m ar y j udg ment and did not abuse its discretion in imposing sanctions. I write sepa

rate ly to addre ss the immunit y

from liability

for a micus attorney s in family law ca ses. 1
I n 2003, the leg islature cre ated the new court-a ppointed position o f amicus attorney as part of an overha ul t o ch ap t er 1 07 of the family code conce rning court-or dere d
repr esenta tion in a suit aff ecting the pare nt-child rela tionship (SAPCR ). See Act of J une 18, 2003, 78th L eg ., R.S., ch. 262, 2003 Tex. Gen. L aws 1173, 1173-83 ( curr ent ver sion at Tex

. Fam. Code
Ann. §§ 107.001-.031 (West 2008 & Supp. 2009)); see genera l l y Debor ah H. L ehrma

nn,

The courts may not appoint an amicus attorney in suits filed by g overnme ntal entities under 1 chapte r 107 of the f

amily code. See Tex. Fam. Code Ann. §§ 107.001( 1), .017 (West 2008).Court -Appoint ed Represe ntation of Children in Texas Family L aw Cases A Practical Guide for

Attorneys § 3.14[1] (2009-2010 ed.). An amicus attorney ’s role in a family law case is “to provide leg al service s nece ssary to assist the court in protec ting a child’s best interests rathe r than to provide leg al service s to the child.” See Tex. Fam. Code Ann. § 107.001(1) (West 2008); see also In re Baby Boy R ., 191 S.W .3d 916, 922 n.2 (Tex. App.—Dallas 2006, pet. den i ed ) (“The role of the amicus attorney is not to provide le g al re prese ntation to the pare nt, but to a ssist the court in pr otecting the child.”). Amicus attorney s are aff orded immunit y under section 107.009 of the family code. See
Tex. Fam. Code Ann. § 107.009 (West 2008) (amicus attorney “not liable for civil damag es arising from an action taken, a rec ommendation m ad e, o r an o p i nion g iven in the capa city of

. . . amicus attorne y ”).

Our sister cou rt ’s analy sis in Delcourt v. Silverman, 919 S.W .2d 777, 786 (Tex. App.—Houston 1996, writ denied) , is instru ct ive conce rning the policy underly ing immunit y for amicus attorney s in family law case s. Although it was decide d prior to the 2003 amendments to chapte r 107 of the family code, the court held that g uardia ns ad litem wer e aff

orded immunit y from liability for their “ac tions taken pursuant to and within the scope of their appointment, provided that the appointment contemplates the ad litem acting as an extension of the court.” See id

. I n rea ching its holdi ng , our sister cour t acknowle dg ed the unde rly ing policy for a ffor ding immunity :

The policy underly ing derive d judicial immunit y that protec ts participa nts in judicial and other adjudicator

y proce eding s is sound. Not only does the policy g uara ntee an independe nt, disinterested decis i o n -m aking proce ss, these immunit ies preve nt the hara ssment and intimi dation that might otherwise result if disgr untled litigants could vent their ang er by suing eit h er t h e p erson who prese nted the decision maker with adver se informa tion, or the person or persons who r ender ed an a dverse opinion.

2Id

. at 782 (citation omitted). The court rec og niz ed t h at g uardia ns ad litem “must be able to make impartial rec ommendations to the court” without the threa t of liability

. Id

. at 785. The court further stated:

“Oft en , pare nts are pitted ag ainst one another i n an int ensely persona l and mi litant clash. I nnocent children may be pawns i n t h e conflict. To safe g uard the best interests of the ch i l d ren, howeve r, t he guar dian’s judgment m ust rema in impartial, unaltere d by the int i m i d at i n g wra th and litigious pencha nt of disgr

untled pare nts. Fe ar of liability to one of the pare nts can war p judgme nt that is cru ci al t o v i g ilant loy alty for what is best for the child; the g uardia n’s fo cu s must not be diverted to appea sement of a

ntag onistic pa

rents.”

. . . Thus, the threa t of liability could distort the ad litem’s investiga tive role and substantially impede his or her ability to asce rtain and repor

t to the court the best place ment for the child. I n turn, “the ability of the judge to perf

orm his or her judicial duties would be impaired and the asce rtainment of truth obstructed.”

. . . Second, the availability of qualified attorney s to repr esent children in the midst of a custody dispute might be aff ecte d if disgr

untled or vitupera tive pare nts could hold the g uardia n ad litem persona lly

liable.

Id . (citations omitted).

The underly ing policy fo r af fording g uardia

ns ad litem immunit y prior to the
2003 amendments to the family code is equally applicable to the immunit y aff orded court appointed
at t o rn ey s under section 107.009 of the family code. See Tex. Fam. Code Ann. § 107.00 9

. Section 107.009 “substantially codifies exis ting case law that holds that the doctrine of derive d judicial immunit y applies to lawy ers appointed as gu ar d i an s ad litem in the family law context beca use they conduct their duties as extensions of the court.” L ehrma nn, supra , § 3.14[1] [k]

. The

3policy is pa rticularly applicable to an amicus attorney who solely functions as “an extension of the
court.” See, e .g. , Delcourt, 919 S.W .2d at 786. 2

To hold otherwise would thwart the intent of the statute. After brin gi n g t h i s suit,
Z eifman filed a m o t i on to modify a prior order in the underly ing SAPC R; Nowlin ref

raine d from acting as the amicus attorney g oing forwa rd. I n its order sanctioning Z eifman, the trial court found that “the filing of Plaintiff’s Orig inal Petition in this matter was intended to a nd actua lly did c ause Ms. Nowli n t o re fr ain from acting as amicus attorney in future proce eding s in the Under ly ing
SAPC R.” The c ourt conc luded:

. . . Plaintiff’s pleading s and conduct eff ectively cause d Ms. Nowlin to ref rain from acting as amicus attorney in [t he underly ing SAPC R] , and to ref

rain to act as amicus attorney in other ca ses bec ause of the threa t of suit.

Fur ther, at the hear ing on the motion for sanctions, Nowlin testified that she no longe r takes amicus attorney ap p o i n t ments at all beca use “I am just g oing to be a targ et.” Be cause of this suit, the
“ava ilability ” of a qualified amicus attorney in the underly ing SAPC R, a s well as other family law

case s, may

have be en af

fec ted. See id. at 785. Wit h these comments, I concur in the judgme nt, aff irming the trial court’s judgme nt.

For example, unlike other court-a ppointed attorney s, “an amicus attorney is not bound by 2 the child’s expressed objectives of repr esenta tion.” See Tex. F am. Code Ann. § 107.005(a) (West 2008). I n addition, an amicus attorney may disclose confide ntial communications betwee n the child and the amicus attorney to the court when the “amicus attorney det er m i n es t h at disclosure is nece ssary to assist the court reg arding the best interests of the child.” Id

. § 107.005(c) (West 2008). These provisions, among others, allow the am i cu s att orney to act on the court’s behalf to deter mine the best interests of the child. See id

. § 107.001(1); see also O’ C o nnor v. O’Connor , 245 S.W .3d 511, 515 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (tr ial court “ is, in effe ct, the amicus attorne y ’s client for a limited purpose”)

. 4__________________________________________ J an P. Patterson, J ustice
Be fore J ustices Patterson, Pember ton and Waldrop Filed: Aug ust 27, 2010

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