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Legally Speaking


Issue: October, 2008
Author: John M. Burman

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Ethically Speaking - Juvenile Court, Part II - Some of the Legal Knowledge Reasonably Necessary to be a Competent Guardian ad Litem

The last column which appeared in “Ethically Speaking” was entitled “Juvenile Court, Part I: The Rules of Procedure for Juvenile Courts, and the Transfer of the GAL Program to the Public Defender’s Office.” The column ended with the statement that the Public Defender’s Guardian Ad Litem Program “rules . . . will be the subject of future columns.” Those rules are now in the comment period. In fact, they have just been put out for a second comment period because of changes made in response to public comment and public hearing, . . .” Since those rules are not final yet, and since there is a lot more “legal knowledge” that a guardian ad litem (“GAL”) must have to perform his or her task competently, this article is devoted to Wyoming Supreme Court opinions. The rules, and other authorities, will be addressed later.

Wyoming Supreme Court Opinions
Most of the Wyoming Supreme Court’s opinions which discuss a GAL’s role, arose in some context other than juvenile court, such as in cases involving domestic relations, termination of parental rights (“TPR”), or guardianships. Nevertheless, those opinions are very relevant to a GAL in juvenile court as there is no significant difference between GALs in juvenile court and GALs in other contexts. Ethically, a GAL, whatever the context, “represents the best interests of the individual for whom the lawyer has been appointed to act, and the lawyer’s obligations pursuant to these rules shift accordingly.”

Perhaps most importantly for a GAL, the Supreme Court has made it clear that parents have a constitutionally protected liberty interest in the care, custody and control of their children (the Wyoming Supreme Court’s holdings in this regard are consistent with the holdings of the United States Supreme Court.) So long as a parent is fit, the best interests of his or her child is to be with that parent, and the court should not consider the best interests of the child.

While the following list is not exhaustive, GALs should be familiar with these cases, at a minimum. Although they arose in a variety of contexts, the opinions address issues relevant to GALs in juvenile or TPR cases, and every GAL should be familiar with them.

One of the first Wyoming cases to address GALs was Moore v. Moore, a 1991 case involving the custody of children in a divorce case. The Court addressed two issues important to GALs: (1) whether a GAL may have ex parte contact with the court; and (2) what role a GAL should play at trial. With respect to the first issue, the Court held that “‘[g]uardians ad litem may not have ex parte communications with the judge.’”

Second, the Moore court held that “[a] guardian ad litem is the attorney for the minor whom he is appointed to serve. . . . . He participates in the proceedings as an advocate.” A GAL, in other words, is to be a lawyer for the child, and, as such, he or she may give an opening statement, cross-examine witnesses called by other parties, call witnesses and present a case, and give a closing argument. In pretrial proceedings, the GAL may engage in discovery, motion practice, and anything else that needs to be done in the best interests of the child or children.

A couple of years later, the Court discussed the reason for appointing a GAL in a juvenile case, as well as the proper remedy when a juvenile court does not hear a juvenile case within the statutorily mandated period.

First, the Court addressed the reason for appointing a GAL in a juvenile case: “In appointing a guardian ad litem,” said the Court, “the juvenile court has determined that either the child has no parent, guardian or custodian appearing in its behalf or that the interests of the parent, guardian or custodian are adverse to the best interests of the child. . . . [Once appointed,] the guardian ad litem must act with reasonable diligence in the role of an advocate for the child . . . and participate as necessary in all phases of the process, including subsequent appeals, to insure the rights of the client are protected.”

The Court also considered the juvenile court’s failure to hold an adjudicatory hearing within the time prescribed by statute. “[t]he failure to set an adjudicatory hearing within sixty days of the denial of . . . a petition invoking juvenile court jurisdiction does not result in a loss of that court's subject matter jurisdiction. . . .” Instead of losing jurisdiction, with an attendant dismissal of the petition, “the proper remedy . . . is a motion to the juvenile court for a prompt hearing brought by the minor through the guardian ad litem.”

Children, and their families, who become involved in juvenile court, are subject to myriad rules, mostly promulgated by the Department of Family Services (“DFS”). A few years later, in a TPR case, the court addressed DFS’s failure to follow its rules.

The Court began by acknowledging the importance of parental rights. In evaluating a case involving TPR, the Court said, “[w]e strictly construe the application of parental rights termination statutes because of the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children.” The Court then considered the significance of DFS’s rules and its failure to abide by them. “DFS has promulgated certain child protection rules which are applicable to this termination of parental rights case because they provide a structure within which the Department accomplishes its statutory responsibilities.”

Properly promulgated rules, said the Court:

have the force and effect of law. . . . [and a]n administrative agency, such as DFS, is bound to follow its own rules and regulations. . . . In this case, the DFS rules in question affected M.B.'s fundamental parental rights. Therefore, they must be followed strictly and failure to follow those rules and procedures must result in a reversal of the action taken when a parent's rights are terminated.”

The seminal Wyoming Supreme Court opinion regarding GALs came in 1998 in Clark v. Alexander, a divorce case involving custody. Unlike previous cases, in Clark, “[t]he role of the attorney/guardian ad litem during the proceedings [was] central to the disposition of this case.” Accordingly, the Court made several important holdings.

First, the Court noted the paucity of guidance for GALs. “In Wyoming, the role of an attorney or guardian ad litem in custody cases is not addressed by statute, and like many jurisdictions, case law has failed to clearly delineate the parameters of the duties incumbent upon appointment.” The same could have been said about GALs in juvenile cases. Because of the lack of guidance, the Court issued a call to address the many unanswered questions:

In recognition of the need for clarification and the lack of uniformity throughout our state, we urge our courts, legislators, professionals, and concerned citizens to undertake a consolidated effort to address the appointment of counsel and guardians ad litem for Wyoming's children.

Second, the Court discussed GALs, in general: “‘[I]n custody matters, the guardian ad litem has traditionally been viewed as functioning as an agent or arm of the Court, to which it owes its principal duty of allegiance, and not strictly as legal counsel to a child client.” A GAL, in short, is the eyes and ears of the court, able to do many things a judge cannot. “Unhampered by the . . . restrictions that prevent the court from conducting its own investigation . . . , the guardian ad litem essentially functions as the court's investigative agent, charged with the same ultimate standard that must ultimately govern the court's decision-i.e., the “best interests of the child.’”

Third, the Court compared a GAL in a custody case with a GAL in a child protection case finding that the statutory provisions that apply to juvenile court GALs are relevant to GALs in domestic relations cases. This holding is one of the reasons that holdings in non-juvenile cases are relevant to GALs in juvenile cases. The Wyoming Supreme Court treats them similarly, so it seems foolish not to follow suit.

Fourth, the Court discussed the need to modify the application of some Rules of Professional Conduct, identifying Rules 1.2 (allocation of authority between lawyer and client), 1.7 (conflicts of interest), and 1.6 (confidentiality). Those rules were subsequently amended to address GALs. The Court also held, however, that at trial, a GAL should “actively participate as legal counsel for the children.” Accordingly, the GAL may not testify, as a lawyer may not act both as advocate and be a witness at the same proceeding.

Fifth, the Court stressed the importance of a GAL. He or she “fills a void inherent in the procedures required for the adjudication of custody disputes. Absent the assistance of a guardian ad litem, the trial court, charged with rendering a decision in the ‘best interests of the child,’ has no practical or effective means to assure itself that all of the requisite information . . . will be brought before it untainted by the parochial interests of the parents.’”

Finally, the Court adopted the “‘hybrid” model, in which one lawyer acts both as GAL and as lawyer for the child; the “nature of the [hybrid] role of attorney/guardian ad litem . . . necessitates a modified application of the Rules of Professional Conduct.” “[T]he attorney/guardian ad litem is charged with protecting the child's best interest . . .”

After the Clark opinion, the Joint Judiciary Committee of the Wyoming Legislature appointed a Guardian ad Litem Committee (“GAL Committee”) to review the current Wyoming Statutes regarding GALs, and to make recommendations. Among the changes the committee ultimately recommended, were changes to Wyoming’s Rules of Professional Conduct, which were adopted.

The GAL Committee’s efforts had not borne fruit by the time the Wyoming Supreme Court again considered the role of a GAL in a custody case in 2001 in Pace v. Pace. The Court reiterated its request:

We reiterate our plea briefly stated in Clark, 953 P.2d at 151, n. 2: Our decision here does not address many areas of chronic confusion in the appointment of a guardian ad litem, e.g., when an appointment is necessary, the necessary qualifications to serve as guardian ad litem, and the timeliness of the court's communication of the specific duties expected by the court. In recognition of the need for clarification and the lack of uniformity throughout our state, we urge our courts, legislators, professionals, and concerned citizens to undertake a consolidated effort to address the appointment of counsel and guardians ad litem for Wyoming's children.

The Court reaffirmed its earlier holding “the attorney/GAL must refrain from testifying . . .” The Court went on to clarify the duties of a GAL both before and at trial.

First, the Court reiterated that a GAL should participate fully in pretrial proceedings and at the trial itself. “‘[T]he attorney/guardian ad litem has the opportunity and the obligation to conduct all necessary pretrial preparation and present all relevant information through the evidence offered at trial.’” At trial, the GAL may file his or her recommendations with the court only “after the full and explicit consent of the parties . . . “Absent such consent” the GAL “must present evidence sufficient to support her recommendation during trial and present the recommendation in the form of closing argument based on the evidence.”

A few years later (2004), the Court repeated the requirement that a GAL’s trial recommendation be based on the record, again in a divorce case. “The record is. . . clear that the GAL’s recommendations were limited to the evidence adduced at trial and focused on the statutory factors that bear on a determination of what is in the best interests of the children. . .” The Court went on to note that trial courts have a role to play in specifying what a GAL should do. “The district court's explicit instructions to . . . the GAL were superlative in this case.”

Perhaps the opinion in which the Court most clearly sets out the importance of the relationship between a legal parent (a biological or adoptive parent) and child cam in a guardianship case. In In re Guardianship of MEO (“MEO”), the Court faced the issue of whether an involuntary guardianship may be established for a child, over the objection of a parent, when the court finds a guardianship to be “in the best interests” of the child, whose parent is, according to the same court, “not unfit,” or whether the issue is simply whether the parent is “fit.”

The Court began with the proposition that “‘[p]arents enjoy a constitutionally protected fundamental right to ‘make decisions concerning the care, custody, and control of their children.’” It was a short step for the Court to then conclude that the fundamental right applies to all parents, not just “good” ones.

The constitutional protections afforded to parents are not reserved for those who are perfect.

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents. . . . [S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason . . . to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.

The Court went on to address the concept of “best interests” in terms that are very relevant to juvenile court proceedings.

Is it in a child's best interest that he or she be raised in an affluent family as opposed to an impoverished family? Would it be better that a child be raised by extremely intelligent parents rather than people of average intelligence? Is a child better off if that child is raised in a conventional life style rather than an unconventional life style? All of these factors could arguably be considered in determining the child's best interests.”

“No,” was the Court’s answer. In words that should be in the forefront of every GAL’s mind in a juvenile case, where a child’s parent almost invariably falls short when measured against other environments, such as good foster home, “‘none [of the foregoing considerations] even remotely justify denying a parent's constitutional and fundamental right to the custody of his or her child.’”

The Court concluded that “[a] child with a parent has a natural guardian and is not in need of a court-appointed guardian, unless the court determines that the child's natural guardian is not fit.” Thus, “‘[o]nce the natural parent is deemed fit, the issue of custody is decided.’”

In MEO, in short, the Court adopted, at least implicitly, the “parental preference” doctrine. That is, a fit parent is assumed to act in his or her child’s best interests. “‘So long as a parent . . . is fit . . . there will normally be no reason . . . to further question the ability of that parent to make the best decisions concerning the raising of that person’s child.’”

The influence of MEO on juvenile cases is that the same concept, that a fit parent is entitled to custody and care of his or her child, should be apparent. The proposed Guardian Ad Litem Program Rules, as revised by the Wyoming Public Defender, reflect that sentiment:

“Best interests.” Refers to a determination of the most appropriate course of action based on objective considerations of the child’s specific needs and preferences. . . . This determination must include the presumption that it is in the child’s best interest to be with his or her parent(s), as outlined by the Wyoming Supreme Court in In re Guardianship of MEO, 2006 WY 87, 138 P.3d 1145 (Wyo. 2006).

In the last couple of years, the Wyoming Supreme Court has issued two opinions in TPR cases that are directly relevant to GALs. The first came in In re L.L., A.L., M.L., and N.C., In that case, DFS sought to terminate the parental rights of the mother of four children who had all previously been (and at the time of the TPR case, were) involved in child protection actions in juvenile court (the father had voluntarily relinquished his parental rights; he is in prison for sexually abusing his daughters).

As is fairly typical, In re L.L., A.L., M.L., and N.C., was a TPR case that resulted from child protection cases. As with every TPR case in Wyoming, the case was filed as a new action. In the juvenile cases, a lawyer had been appointed as the GAL for all four children involved in the TPR case. He was not, however, appointed as GAL in the TPR case. At the trial, and on appeal, the issue arose of the proper role in the TPR case of the GAL from the juvenile court actions. In particular, the issue was whether the GAL should be allowed to testify, over the objection of the mother.

The Wyoming Supreme Court held that the GAL for the children in related juvenile actions may testify in a TPR case involving the same children, over the objection of the mother. The mother’s argument that the GAL in the juvenile cases should not be allowed to testify, said the Court, “has no legal or logical foundation.”

The GAL In re L.L., A.L., M.L., and N.C., testified voluntarily, so the issues of whether a GAL may be compelled to testify or whether his or her files are discoverable, were not addressed. Given the Court’s holding, however, GALs should assume that they may be compelled to testify in a subsequent TPR case and that their files are discoverable. Further, other types of cases may arise involving the children subject to a child protection or CHINS case, such as divorce or paternity cases, and the same issues regarding the juvenile court GAL may arise. Once again, GALs should assume that they may be compelled to testify and that their files are discoverable (a GAL may, and should, argue that his or her files are protected from discovery by either the attorney-client privilege or the work product doctrine, or both, whichever is appropriate.

Whether communications between a child and a GAL are covered by the attorney-client privilege has been a source of debate around the country. “Compare Alaska Bar Assoc. Ethics Op. #854 (2985) (lawyer-client privilege does not apply when the attorney is appointed to be a child’s guardian ad litem), with Bentley v. Bentley, 448 N.Y.S. 559 (App. Div. 1982) (communication between minor children and guardian ad litem in divorce custody case is entitled to lawyer-client privilege).”

In its Proposed Rules, the Wyoming Public Defender’s Office comes down on the side of the privilege applying: “In no event shall communications between a child and the child’s GAL be admitted, without the child’s informed consent . . . .”.

Since a GAL in Wyoming plays a “hybrid” role, in which he or she acts as attorney for the child, communications between the child and the GAL should be protected under the Wyoming attorney-client statute as the child is a “client,” and the statute protects communications between an attorney and a “client.”

The only sure way to avoid the issue of having to testify in another action involving the child(ren) for whom a lawyer is a GAL in a juvenile action is for the GAL in the juvenile case to seek appointment as GAL in the TPR or other custody case that follows. If that happens, the GAL cannot be compelled to testify, or even testify voluntarily, and his or her files are, at least arguably, protected from discovery by the attorney-client privilege or the work product doctrine, or both.

The second important opinion involving TPR was In the Interest of FM, BA v. Laramie County Department of Family Services. In that case, the district court terminated parental rights. On appeal, the Court addressed, inter alia, the district court’s failure to appoint a GAL. The Court noted that Wyo. Stat. § 14-2-312 says “[a]fter the petition [for TPR] has been filed, the court shall appoint a guardian ad litem to represent the child unless the court finds the interests of the child will be represented adequately by the petitioner or another party to the action and are not adverse to that party.” It is reversible error for the court to do neither.

Although it has been a decade since the Court’s ruling in Clark v. Alexander, and many issues regarding GALs and juvenile court have been answered, at least in part, the central concern expressed in the Court’s opinion remains as true today as when it was written: There is still a “need for clarification and the lack of uniformity throughout our state . . .” when it comes to GALs, whatever the context. The GAL Program, as implemented by the Wyoming Supreme Court through Rule 106 of the Uniform Rules of Procedure for District Courts, and the Wyoming Public Defender’s Proposed Rules for the Guardian Ad Litem program, have helped greatly in bringing some uniformity to the work of GALs.

As with any endeavor by any lawyer, there is always more that can be learned. While there is no one right way to be a GAL, and every child is unique, it is important that those lawyers who act as GALs know something about the law that governs GAL's behavior. Part of that law is the opinions of the Wyoming Supreme Court that address GALs. While the foregoing list is not exhaustive, every GAL should be familiar with these opinions.

There is, of course, more “legal knowledge” that a GAL should possess before he or she can fulfill the ethical obligation to provide competent representation to a child or the best interests of a child. That knowledge includes federal statutes, United States Supreme Court opinions, Wyoming statutes, and the new program rules currently being promulgated by the Wyoming Public Defender’s Office. Future columns will address those areas of laws.

John M. Burman is the 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 jmburman@uwyo.edu.

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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