Issue: August, 2008
Author: John M. Burman
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Ethically Speaking - Juvenile Court, Part I -
The Rules of Procedure for Juvenile Courts and the Transfer of the GAL Program to the Public Defender's Office
Children may be subject to three different types of proceedings in juvenile court. First, a child may be involved in an abuse or neglect action directed at his or her parents. Second, a child who is ungovernable may be part of a child in need of supervision (CHINS) action. Finally, a child who has committed a delinquent act (one that would be punishable as a crime if committed by an adult) may be charged as a juvenile delinquent. While each type of proceeding is unique, a petition to initiate a juvenile action is brought by the county or district attorney (collectively referred to as the “county attorney” in this article), the child’s parent(s) or other legal custodian may be represented by counsel, and a child may be appointed a guardian ad litem (“GAL”) to represent his or her “best interests” or an attorney to represent the child. Whatever the type of proceeding, a number of lawyers will be involved in one capacity or another. And each lawyer is bound by the Wyoming Rules of Professional Conduct (“the Rules”).
Although the ethical responsibilities of GALs “shift accordingly” because of the fundamentally different role that GALs fill, many of their responsibilities remain the same as any lawyer’s. Among the duties that do not change is the duty of competence (which is both an ethical and a legal responsibility). In every matter, every lawyer “shall provide competent representation to a client.” The rule goes on to say that “[c]ompetent representation requires the legal knowledge . . . reasonably necessary for the representation.”
The “legal knowledge . . . reasonably necessary” for GALs and other attorneys practicing in juvenile courts (primarily parents’ attorneys and county attorneys) has changed significantly because of three recent occurrences. First, the Rules of Procedure for Juvenile Courts were enacted and became effective on July 1st of last year. Second, the 2008 Wyoming Legislature transferred the GAL Program from the Wyoming Supreme Court, which had been its home since 2005, to the Wyoming Public Defender’s Office (“the PD’s Office”) effective July 1, 2008. Third, as authorized by the transfer legislation, the PD’s Office is in the process of promulgating rules to implement the GAL program (the PD’s Office promulgated emergency rules in order to implement the GAL Program by the legislatively mandated date of July 1, 2008. The emergency rules were signed on July 2, 2008. The PD’s office is currently in the process of promulgating permanent rules to replace the emergency rules).
This column is about the first two occurrences. The promulgation of the Rules of Procedure for Juvenile Courts, and the transfer of the GAL Program to the PD’s Office, as both have already occurred. The third, the PD Office’s promulgation of rules for the GAL program, is ongoing. The rules should be promulgated as final rules in time for the next column, and they will be addressed in it, if possible.
The Rules of Procedure for Juvenile Courts
In 2007, the Rules of Procedure for Juvenile Courts (“Rules of Procedure”) were adopted and became effective on July 1st of that year. The Rules of Procedure contain important provisions regarding discovery, disclosure of information, the role of CASA (Court Appointed Special Advocates) volunteers in juvenile court, as well as other provisions about which GALs and other lawyers practicing in juvenile courts should be aware.
The Rules of Procedure “govern practice and procedure in the trial courts in all juvenile court actions.”
Among the issues addressed by the rules is whether a child who is the subject of a juvenile court proceeding should attend the proceedings. The answer depends on two things: (1) the nature of the proceedings and (2) the age and maturity of the child.
First, in “abuse and neglect actions” the child need not be present if the child is not of suitable age to understand or participate in the proceedings, “unless the court orders his or her attendance. By contrast, “a child who is alleged or adjudicated to be delinquent, or in need of supervision, shall be present at all proceedings unless otherwise ordered by the court.” The court may not, however, waive the presence of a child in a delinquency of CHINs hearing “where the court is required to advise the child of the contents of a Petition and the child's rights under any applicable statute.”
Second, a child of “suitable age” should generally attend all juvenile cases, including abuse and neglect cases. Even if the child is of “suitable age,” or is part of a delinquency of CHINs proceeding, the court may, “[u]pon motion of a party . . . excuse the presence of a child . . . if attendance would be detrimental to the child; or [the court may] allow a child to appear by telephone.”
The rule then addresses the presence of foster parents and other providers of out-of-home placements. Such persons are:
[E]ntitled to be heard at any hearing. However, the court may limit the presence of the foster parent or care provider to the time during which the person's testimony is being given if it is (1) in the best interest of the child; or (2) necessary to protect the privacy interests of the parties and will not be detrimental to the child.
Further, “[p]rior to each hearing held pursuant to the Child Protection Act, the county or district attorney, or another entity designated by the court, shall provide written notice of such hearing, including their right to be heard, to the child's foster parents, pre-adoptive parents, or relative caregivers.”
Rule 3 is entitled “Discovery and Inspection – Abuse and Neglect, Delinquency, CHINS.” Just as the title suggests, the rule provides for discovery by the State, which includes the obligation for the State to disclose certain information to the respondent and the GAL “without the necessity of a request” being filed. Essentially, the State has to disclose its case to the respondent and the GAL, including any exculpatory evidence. The State may fulfill its disclosure obligation by advising “the Respondent and the guardian ad litem [that they] may inspect the discoverable portions of the State’s file,” and then allowing such inspection.
Material subject to the work product doctrine (such as opinions or legal theories) need not be disclosed; nor does the State need to disclose the “identity of a confidential informant of the State, so long as the failure to disclose the informant's identity does not infringe on a constitutional right of the Respondent, and the State does not intend to call the informant as a witness.” Finally, the court may order other material not to be disclosed.
Rule 3 also allows the State or the GAL to request, in writing, that the respondent appear in a lineup or take part in a variety of other procedures aimed at identifying an individual (such as speaking or being fingerprinted).
Rule 3.F. sets out the procedures and time for discovery and disclosure (30 days), which are generally consistent with the rules of discovery in civil cases. The Rules of Procedure do contain, however, special provisions for motions to compel discovery or for protective orders.
Reports are common in juvenile court. To avoid surprises, “[n]ot later than five (5) business days prior to the hearing where any report is to be offered for consideration, the party offering the report shall file the report with the court and provide a copy of the report to be offered to all other parties.”
Rule 4 is entitled “Right to Counsel, Generally.” Consistent with the statutes and the United States Constitution, “[t]he Respondent [in a juvenile matter] is entitled to be represented in all proceedings in Juvenile Court by counsel retained by him, his parent, or by counsel appointed pursuant to this Rule.” Out-of-state attorneys may appear only in accordance with applicable pro hac vice requirements. The rule is different for cases involving Native American children. In juvenile “proceedings subject to the exclusive jurisdiction of the tribe pursuant to 25 U.S.C. § 1919, the tribe’s attorney may appear for the limited purpose of requesting transfer of the matter to tribal court, without showing compliance with . . .” the general requirements for out-of-state attorneys appearing in juvenile cases.
The right to counsel is fairly meaningless unless one knows of the right, and the rule makes notification a requirement. The respondent, who may be a parent in an abuse or neglect case, or a child in a CHINs or delinquency case, is to “be served with written advice of the right to counsel with any order setting any initial hearing.” The advisement of the right to counsel echoes the requirements of the statutes. To ensure that the relevant parties know of the right, the rule requires “[a]t the initial hearing the court shall advise of the right to counsel . . .”
Rule 6 restates the court’s general authority to hold a pretrial conference and meeting of the parties. It provides that “[t]he court may conduct a pretrial conference pursuant to procedures defined by the court.”
Several counties in Wyoming have CASA (Court Appointed Special Advocates) programs, and Rule 8 sets out provisions governing the involvement of CASA volunteers (who are usually not lawyers). Essentially, CASA volunteers may be appointed “at the order of the Juvenile Court.”46 Volunteers may be appointed only if they “have successfully completed the screening and training as required by the local Court Appointed Special Advocate Program and mandated by the National Court Appointed Special Advocates Association.”
Upon appointment, CASA volunteers are to “serve the best interests of a child in abuse and neglect actions.” The volunteer serves “at the pleasure of the court . . . and shall not act as the legal representative or attorney guardian ad litem although it is the expectation of the court that the attorney guardian ad litem and the CASA would collaborate . . .”
The duties of CASA volunteers are detailed in the rule, and essentially consist of conducting an investigation, reporting to the parties, and monitoring the case.
The rule does not address issues such as whether communications between a CASA volunteer and a child are covered by the attorney-client privilege (probably not) whether the volunteer may be called as a fact witness (probably), or whether he or she may speak in court, other than as a witness (possibly; doing so may, however, be the practice of law, though it is common for DFS caseworkers, foster parents, and counselors, to make statements in court, particularly after adjudication).
An incident of child abuse or neglect may lead to criminal charges, as well as an action in juvenile court. Rule 9 permits the prosecutor to enter into agreements not to base charges on parents’ statements at Multi-Disciplinary Team meetings of case planning meetings. In addition, “a juvenile’s admissions or incriminating statements to a professional made in the course of treatment ordered by the Juvenile Court shall not, without the juvenile’s consent, be admitted into evidence in any criminal or juvenile delinquency case brought against the juvenile.”
Finally, juvenile court proceedings take priority. “Proceedings in Juvenile Court shall not be delayed nor stayed pending criminal proceedings in District Court or Circuit Court.
The Transfer of the GAL Program to the Public Defender’s Office
In the 2008 session, the Legislature passed a bill, which was signed by the governor, which “transferred [the GAL program] from the Wyoming Supreme Court to the office of the public defender [“PD’s Office”] . . . .” The transfer is for “the period commencing July 1, 2008, and ending June 30, 2010.” The PD’s Office is to “reimburse attorneys providing legal representation as guardians ad litem in child protection cases . . . children in need of supervision [“CHINs”] cases . . . or termination or parental rights actions brought as a result of a child protection or children in need of representation action.” In addition, a GAL may be appointed “in a case in which a child has been charged with the commission of a delinquent act .” Such a GAL may, “subject to rules” adopted by the PD’s Office, “be eligible for reimbursement” under the program.
The PD’s Office is given the authority to “adopt policies and rules and regulations governing standards for the legal representation by attorneys as guardians ad litem.” As before, an attorney who serves as a GAL and “who seeks reimbursement . . . for legal representation of a child as a guardian ad litem shall meet the standards for guardians ad litem established by the [PD’s] office.”
While the PD’s Office is given rule-making authority, the rules it promulgates are to “ensure [the GALs’] advice remains independent of private providers and that their recommendations consider cost impacts and savings to the state of Wyoming.”
The PD’s Office is to “[e]nter into agreements with the individual counties” No state money is to be paid to GALs “unless the county agrees to match, at a minimum, twenty-five percent (25%) of the state money . . .” When it comes to those contracts which were already in place before July 1, 2008, “[t]The validity of contracts, agreements and other obligations of the state under the program previously administered by the supreme court shall not be affected by this [legislation].”
When it comes to the future, “[a] request for this appropriation [for the GAL program] shall be included in the office of the public defender's 2011-2012 standard biennial budget request.” And “[t]he office of the public defender shall report on or before November 1, 2008 and November 1, 2009 to the joint judiciary interim committee and the joint appropriations interim committee on the results of the program.”
Finally, “2005 Wyoming Session Laws, Chapter 237 [which originally established the GAL program under the auspices of the Wyoming Supreme Court] is repealed.”
The Public Defender’s GAL Program Rules
The PD’s Office is currently in the process of implementing the GAL program which was transferred to it from the Wyoming Supreme Court. As this article goes to press, that process is not complete. The PD’s Office has, however, (1) notified current GALs of how it intends to proceed,68 and (2) promulgated emergency GAL Program Rules, which will be in effect for 120 days,69 during which the office intends to promulgate final rules (the proposed GAL Rules are available on the website of the PD’s Office).
The process for implementing the program was described in a letter from Diane Lozano, the Public Defender, to GALs dated April 16, 2008.
First, the PD’s Office intends to promulgate rules” pursuant to the [Wyoming] Administrative Procedure Act . . . to implement the program. Because of the time involved in promulgating rules, “ Ms. Lozano noted that it was likely that only emergency rules will be in place on July 1, 2008 [which is what happened]. We [the PD’s Office] will provide notice to all interested parties per the APA requirements.”
Second, instead of contracting with a county or counties, “each GAL attorney will be entering into a contract with the Public Defender’s Office.” Initially, those contracts will be for six months; they may then be extended for the remainder of the bi-ennum.
Third, “[t]he training and certification standards will remain largely the same; only those GAL attorneys who have been certified and who continue to receive the GAL annual CLE requirement and who are contracted with the program will get compensated by the program.” “Hourly payments will not exceed $100 per hour, but may be less.”
Fourth, “District Courts [juvenile courts] will still appoint GALS . . .” An important difference will be that instead of a court appointing a specified attorney as GAL, the PD’s Office “will be asking the courts to assign the program rather than individual attorneys.” The office has hired an “attorney director . . . [who] will be responsible for assigning these cases on a rotation basis in each county.”
Fifth, the PD’s Office is “working with the Board of Judicial Policy and Administration to amend District Court Uniform Rule 106,” which was described in this column in August of 2005. The amendments may include changes to the “requirements, definition, and standards” now in Rule 106. The amendments “may include placing the rule within the Rules of Procedure for Juvenile Courts.”
The Rules of Procedure for Juvenile Courts seem not to have made significant changes in how juvenile courts operate. Among their more important provisions are those which allow for and regulate the conduct of CASA volunteers in those counties which have such programs. Also, lawyers need to be aware of and become familiar with the discovery rule, Rule 3, especially the disclosure obligations.
While the transfer of the GAL Program from the Wyoming Supreme Court to the Wyoming Public Defender’s Office will result in some changes in the administration of the program, especially regarding appointment, contracting, and billing, there should be no change in the ethical responsibilities of a GAL. That is, he or she must “provide competent representation” of the “best interests” of the child or children involved. As noted at the outset, competence requires “ the legal knowledge . . . reasonably necessary for the representation.” With the enactment of the Rules of Procedure and the transfer of the GAL Program to the PD’s Office, the legal knowledge ‘reasonably necessary” for practicing in juvenile court has changed. Any attorney, whether a GAL, a county attorney, or a parents’ attorney, must be familiar with the Rules of Procedure, the transfer of the GAL Program, and, ultimately, the GAL Program Rules to be promulgated by the PD’s Office.
Competence also requires the “skill . . . reasonably necessary for the representation.” The GAL Program Rules promulgated by the PD’s Office will likely address some of the unique skills (such as knowing about child development and the effect of domestic violence on children) required to competently represent children, their best interests, or both. Those rules, and some of the skills needed, will be the subject of future columns.
John M. Burman is a Carl M. Williams Professor of Law & Ethics and teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at firstname.lastname@example.org.
The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.
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