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Legally Speaking

 

Issue: December, 2008
Author: John M. Burman

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

The last “Ethically Speaking” column was entitled Juvenile Court, Part II: Some of The Legal Knowledge Reasonably Necessary to be a Competent Guardian ad Litem. The column ended with the statement that “there is a lot more ‘legal knowledge’ that a guardian ad litem (“GAL”) must have to perform his or her task competently . . . [those] other authorities, will be addressed later.” Among the authorities with which a GAL must be familiar are the statutes that govern juvenile courts.

In Wyoming, children may be involved in any one of three different types of actions in juvenile court: (1) a child protection action; (2) a CHINS (“Child in Need of Supervision”) case; or (3) a juvenile delinquency proceeding. Each type of proceeding is governed by different statutes. And while there are similarities among the statutes, there are important differences. Those differences have a significant impact on a GAL’s responsibilities.


Child Protection Actions
When a child is abused or neglected, the State may intervene to protect the child. Such intervention is referred to, not surprisingly, as a child protection action. GALs appointed in such actions must be familiar with the statutes under which the actions occur.

One of the difficulties with Wyoming’s child protection actions is that two statutes apply to abused or neglected children: The Child Protective Services provisions, and the Child Protection Act. Why there are two statutes, which are codified in different articles of Chapter 3 of Title 14, is unclear. What is clear is that there is at least one provision in the former, immunity for certain persons, which does not appear in the latter, and it is unclear whether the immunity provision applies to both statutes and so to all participants, including GALs, in child protection actions.


The Two Applicable Statutes

The Child Protective Services Provisions
Chapter 2 of Article 3 of Title 14 is entitled “Child Protective Services.” That chapter contains provisions regarding its purpose, definitions, the duties of DFS and local child protective agencies, the child abuse or neglect reporting requirement, taking children into protective custody, immunity, appointment “of counsel for child and other parties,” child protection teams, the central registry, and confidentiality of certain records. Some of those provisions are discussed in more detail below.

The purposes of the Child Protective Services provisions (14-3-201 through 216) include: “to protect the best interest of the child . . . to protect children from abuse or neglect which jeopardize their health or welfare . . . to preserve family life whenever possible and to provide permanency for the child . . . .” In seeking to attain those purposes, “[t]he child's health, safety and welfare shall be of paramount concern . . .”

Three terms from the purposes provision are in bold, as they should be the foci of GALs: “best interest;” “preserve family life;” and “permanency.” The first, “best interest,” is the objective of a GAL. The second is a mandate to try and reunify the family, if possible, as it is generally in a child’s “best interest” to be with his or her family. Whether reunification is possible or not, that needs to be done quickly, as children need “permanency,” either with their families or with someone else. Avoiding “foster care drift,” and achieving permanence, should be one of a GAL’s primary goals, from the outset of a case.

“Abuse” is defined broadly. It includes: “inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child . . . excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof by reason of intentional or unintentional neglect . . .” All four terms in bold are defined.

“Physical injury” is:

[A]ny harm to a child including . . . disfigurement, impairment of any bodily organ, skin bruising if greater in magnitude than minor bruising associated with reasonable corporal punishment, bleeding, burns, fracture of any bone, subdural hematoma or substantial malnutrition;

“Mental injury” is:

[A]n injury to the psychological capacity or emotional stability of a child as evidenced by an observable or substantial impairment in his ability to function within a normal range of performance and behavior with due regard to his culture;

The definition of abuse includes “imminent danger” of physical or mental injury. That term, “imminent danger,” means “threatened harm and means a statement, overt act, condition or status which represents an immediate and substantial risk of sexual abuse or physical or mental injury.”

Finally, including “intentional or unintentional neglect” in the definition of abuse greatly broadens the category of abusive behavior, as the definition of “neglect” is, itself, very broad.

“Neglect” means: “a failure or refusal by those responsible for the child's welfare to provide adequate care, maintenance, supervision, education or medical, surgical or any other care necessary for the child's well being. . . .”

Wyoming’s child abuse or neglect reporting statute appears in the Child Protective Services provisions. It requires “[a]ny person who knows or has reasonable cause to believe or suspect that a child has been abused or neglected . . . [to] . . . immediately report it to the child protective agency or local law enforcement agency . . .”

After a report is made, the local DFS office has the responsibility to investigate “all reports of known or suspected child abuse or neglect.” That investigation is to be “initiated[d]” within 24 hours “after notification of a suspected case of child abuse or neglect” and is do be conducted in accordance with DFS child protection rules. The objective of the investigation is to either “substantiate” or “unsubstantiate” the report.

“Unsubstantiated report” and “substantiated report” are defined. The former means that after an investigation, the report of abuse or neglect “is not supported by a preponderance of the evidence.” The latter, by contrast, means that after an investigation, the report “is supported by a preponderance of the evidence.”

If the child is in “imminent danger” he or she may be taken into temporary protective custody pursuant to the Child Protection Act, which is discussed below. If that is done, the local DFS office is to be notified and the child is to be placed in “the most appropriate and least restrictive setting necessary to meet the child's needs.” As “temporary protective custody” cannot last longer than 48 hours, excluding weekends and holidays, without a court order, a GAL is likely to get involved at this stage; between the time the child is taken into temporary protective custody and the time of the “shelter care” hearing to determine if the child should remain out of the home.

The most troublesome part of the Child Protective Services provision is the immunity accorded by section 209. “Any person . . . or agency participating in good faith in any act required or permitted by W.S. 14-3-201 through 14-3-215 is immune from any civil or criminal liability that might otherwise result . . .” Furthermore, “[t]he good faith of any person, official or institution participating in any act permitted or required by W.S. 14-3-201 through 14-3-215 shall be presumed.”

The purpose of this immunity, according to the Wyoming Supreme Court, is “to protect children by encouraging reporting of suspected abuse so it can be investigated without the reporter fearing reprisal if the suspicions are later determined to be unfounded.”

The problem is that the immunity statute extends to “any act required or permitted by W.S. 14-3-201 through 14-3-215.” Among those provisions is one allowing for the “appointment of counsel for child and other parties.” That statute says “[a]ny attorney representing a child under this section shall also serve as the child's guardian ad litem . . .” While a child protection action is brought under the Child Protection Act, which is not codified in sections 201 through 216, such an action often arises out of a report of child abuse or neglect and it is an easy argument to tie the action to the report required by section 205, and the appointment of counsel, who also functions as GAL, to section 210, meaning that the GAL would be immune from “any civil or criminal liability” so long as he or she acted in “good faith,” including malpractice liability, that might result.

The argument for immunity is strengthened by the reference in section 210 to appointing counsel for a child or other party “in court proceedings.” That term is defined as “child protective proceedings . . .”

Providing immunity for GALs and other lawyers in child protection actions does not, however, extend to a GAL or other lawyer involved in a CHINS, delinquency, termination or parental rights (“TPR”), domestic relations or other case, a result which makes no sense, and which flies in the face of the reason for immunity—to encourage reports of child abuse. Notwithstanding the statute, GALs in child protection cases should not be immune from malpractice liability, and they should not behave as if they were. They, as GALs in CHINS, juvenile, TPR, domestic relations cases, and other contexts, should be held to the same standard as all lawyers in Wyoming, the “reasonable lawyer” standard.


The Child Protection Act
Chapter 4 of Article 3 of Title 14 is “to be known as the . . .‘Child Protection Act.’” It contains the procedures and standards for filing child protection actions, including when and which hearings are to be held, the dispositional powers of the court, and the duration of such actions. Unlike the Child Protective Services provisions, the Child Protection Act does not contain a grant of immunity to anyone for anything, and it is this standard that should apply to potential malpractice actions against GALs.

The Child Protection Act (“the Act”) begins with definitions. As the Act is aimed at preventing child abuse or neglect by anyone who has the custody of a child, not just parents, “custodian” is defined broadly. A “custodian” is “a person, institution or agency responsible for the child's welfare and having legal custody of a child by court order or having actual physical custody . . .” Perhaps the most important part of custody is “legal custody.” A “legal custodian” is “a person, institution or agency responsible for the child's welfare and having legal custody of a child by court order or having actual physical custody . . .”

The Act adopts the definitions of abuse and neglect from the Child Protective Services provisions. A “[n]eglected child” means a child “[w]ho has been subjected to neglect as defined in W.S. 14-3-202(a)(vii) [one of the Child Protective Services provisions];” or a child “[w]ho has been subjected to abuse as defined in W.S. 14-3-202(a)(ii) [the references are to the Child Protective Services provisions].

An action under the Act involves several “parties.” They include “the child, his parents, guardian or custodian, the state of Wyoming and any other person made a party by an order to appear, or named by the juvenile court.”

A child at risk may be permitted to remain in or return to his or her home under “protective custody.” “Protective custody” means “a legal status created by court order following an adjudication of neglect, whereby the child is permitted to remain in his home subject to supervision by the department of family services . . .”

When a child is removed from home, the child’s parents still have “residual parental rights.” Those are the “rights and duties remaining with the parents after legal custody, guardianship of the person or both have been vested in another person, agency or institution . . .” “Residual parental rights” include: (1) the duty of support; (2) the right “to consent to adoption;” (3) “reasonable visitation . . . ;” (4) the right “to determine the minor’s religious affiliation;” and (5) the right “to petition on behalf of the minor.”

A child who is removed from the home may be placed in “temporary protective custody.” This refers to “a legal status created prior to a shelter care hearing when a court, law enforcement officer, physician, physician's assistant or nurse practitioner takes a child into protective custody pursuant to W.S. 14-3-405.” “Shelter care” may not continue without a court order for more than 48 hours, excluding weekends and holidays.

After a hearing on whether to continue “temporary protective custody,” a child may be placed in “shelter care.” Such care is “the temporary care of a child in physically unrestricting facilities pending court disposition or execution of a court order for placement or commitment.” “A child taken into temporary protective custody shall not be placed in shelter care without a court order unless shelter care is required to:” (1) “[p]rotect the child’s person;” (2) prevent the child “from being removed from the jurisdiction of the court;” or (3) make sure that the child has a “responsible adult with supervision and care.” Any person who takes a child into protective custody shall “notify the child's parent, guardian or custodian. Unless the child's shelter care is authorized by court order or required for one (1) of the reasons [specified above], the child shall be released to the care of his parent, guardian, custodian or other responsible adult upon that person's written promise to present the child before the court upon request.”

Finally, “the person taking temporary protective custody of the child shall notify the district attorney without delay . . .” Upon being so notified, the district attorney is to “immediately review the need for shelter care and may order the child released unless he determines shelter care is necessary . . . or unless ordered by the court.”


Disposition in a Child Protection Action
Once the court has taken jurisdiction, either through the admission of a custodian or a finding of abuse or neglect, the Multidisciplinary Team (“MDT”) begins meeting. Before the court holds a “dispositional” hearing to determine how the case should proceed, the MDT is to meet and make recommendations to the court. “No later than five (5) business days prior to the dispositional hearing, the multidisciplinary team shall file with the court the multidisciplinary team report which shall include the multidisciplinary team's recommendations and the department case plan . . .”

Section 429 sets out the court’s dispositional powers in child protection cases, and they are broad. A GAL needs to read and become familiar with what is potentially available to assist a child. Under the statute, the court has available many placement and treatment options for the child and his or her family. In deciding on the proper disposition, however, the MDT’s recommendations are critical. The court “shall review the predisposition report, the recommendations, if any, of the multidisciplinary team . . .” Furthermore, there is a presumption that the court will adopt the MDT’s placement recommendations as well as those of the predisposition report. If it does not, “the court shall enter on the record specific findings of fact relied upon to support its decision to deviate from the recommended disposition.”

While an action involving child protection is, by definition, designed to protect a child, the goal is to reunify the family. Accordingly, in entering its dispositional order, “the court shall ensure that reasonable efforts were made by the department of family services to prevent or eliminate the need for removal of the child from the child's home or to make it possible for the child to return to the child's home.”

An order of disposition remains in effect indefinitely, “until terminated by the court whenever it appears the purpose of the order has been achieved and it is in the child's best interest that he be discharged from further court jurisdiction.” A dispositional order in a child protection case terminates when the child reaches age 18, “unless the court has ordered care or services to continue” until the child reaches 21.


CHINS Cases
A child protection action is directed against a custodian and it is designed to protect a child from the custodian. Sometimes the issue is not abuse or neglect, per se, but a child who will not behave. A child who is, in other words, in need of supervision. In such a case, a district attorney may file a petition against the child, seeking to invoke the juvenile court’s jurisdiction through a child in need of supervision (“CHINS”) case.


The CHINS Act
CHINS cases are brought under the Child in Need of Supervision Act (“CHINS Act”), Wyo. Stat. § 14-6-401 et seq. A “child in need of supervision” is:

[A]ny child who has not reached his seventeenth birthday who is habitually truant or has run away from home or habitually disobeys reasonable and lawful demands of his . . . custodian . . . or is ungovernable and beyond control.


CHINS Cases vs. Child Protection Actions
While there are many similarities between CHINS cases and child protection actions, there are important differences—differences which alter a GAL’s role significantly.

The first difference is the identity of the respondent. While a child protection action is directed against a child’s custodian for abuse or neglect of the child, a CHINS case begins with the filing of a petition by the county attorney directed at the child. The petition will contain the factual allegations that form the basis for the claim that the child is a CHINS.

Second, a CHINS may be placed in “shelter care” or in “detention” pending court action. The possibility of being placed in “detention” raises a child’s right to counsel, not just to a GAL.

Third, the maximum potential duration of jurisdiction is shorter. A child protection case lasts, unless earlier terminated by the court, until a child is 18, or longer in some cases. By contrast, CHINS cases last only until a child turns 17.

Fourth, long-term placement of a CHINS, not just temporary placement, may be in a secure facility.

Fifth, the allegations of a CHINS petition must be proved “beyond a reasonable doubt.”

After an admission by a child that he or she is in need of supervision, or an adjudication that such is the case, the GAL’s role switches. As a juvenile subjection to detention has a constitutional right to counsel (to represent the child’s interests), a GAL in Wyoming, who fills the “hybrid” role of lawyer for the child and lawyer (GAL) for the “best interests” of the child, switches to emphasize the latter role, rather than the former.


Disposition in a CHINS Case
Since such a child may be a threat to others, he or she may be detained. “Detention” means “the temporary care of a child in physically restricting facilities pending court disposition . . .” The possibility of detention implicates the child’s right to counsel, not simply to a GAL.

Once the court has taken jurisdiction, either through the admission of a child or a finding that the child is in need of supervision, the MDT begins meeting. Before the court holds a “dispositional” hearing to determine how the case should proceed, the MDT is to meet and make recommendations to the court. “No later than five (5) business days prior to the dispositional hearing, the multidisciplinary team shall file with the court the multidisciplinary team report which shall include the multidisciplinary team's recommendations and the department case plan . . .”

Section 429 sets out the court’s dispositional powers in CHINS cases, and they are broad. A GAL needs to read and become familiar with what is potentially available to assist a child and the child’s family. The court has available many placement and treatment options for the child and his or her family. In deciding on the proper disposition, however, the MDT’s recommendations are critical. The court “shall review the predisposition report, the recommendations, if any, of the multidisciplinary team . . .” Furthermore, there is a presumption that the court will adopt the MDT’s placement recommendations as well as those of the predisposition report. If it does not, “the court shall enter on the record specific findings of fact relied upon to support its decision to deviate from the recommended disposition.”

While a CHINS action is, by definition, designed to assist a wayward child, the goal is to reunify the family. Accordingly, in entering its dispositional order, “the court shall ensure that reasonable efforts were made by the department of family services to prevent or eliminate the need for removal of the child from the child's home or to make it possible for the child to return to the child's home.” Further, “[b]efore placing a child outside of the home, the court shall find by clear and convincing evidence that to return the child to the child's home would not be in the best interest of the child despite efforts that have been made.”

An order of disposition remains in effect indefinitely, “until terminated by the court whenever it appears the purpose of the order has been achieved and it is in the child's best interest that he be discharged from further court jurisdiction.” Unless sooner terminated by order of the juvenile court, a dispositional order in a CHINS case terminates when the child reaches age seventeen; “[i]f the child is still in the custody of the department upon attaining the age of 17 years, services may be provided on a case by case basis. The statute is silent about how long such services may continue.

After adjudication, a CHINS may also be placed on “probation.” “Probation” is “where a child is permitted to remain in his home subject to supervision by a city, county or state probation officer, the Department of Family Services or other qualified private organization the court may designate.”


Juvenile Delinquency Proceedings
A child who has committed an act that would have been a crime if it had been committed by an adult may be charged in juvenile court with having committed a delinquent act. Most children who come into contact with the legal system because they are charged with crimes, however, never come into contact with juvenile court. Instead, they are charged and treated as adults in adult courts (usually either Circuit Courts or Municipal Courts, which have jurisdiction over misdemeanors—and most children are charged with misdemeanors, such as Driving Under the Influence or Minor in Possession (a so-called “status offense.” A “status offense” is an act which is a crime only because of the person’s status as a minor. It is legal for an adult to possess alcoholic beverages. It is not legal for a person under age 21 to do so. The person’s “status,” therefore, as an adult or a minor determines whether the act is a crime.)

The Public Defender’s GAL Rules (emergency rules are in effect; final rules are awaiting signature by the Governor) provide for the appointment of a GAL in a juvenile delinquency case in some circumstances. The GAL Rules apply to “an attorney appointed to serve only as a guardian ad litem in a case in which a child has been charged with the commission of a delinquent act . . .” Therefore, three things may happen. First, the child may be appointed a lawyer to represent the child’s interests, as required by the United States Supreme Court. Second, the child may be appointed a lawyer who is to act both as a lawyer, representing the child’s interests, and as GAL, to represent the child’s best interests—the so-called “hybrid” model. Third, the child may be appointed a lawyer to represent his or her interests, and another lawyer to act as GAL, to represent his or her best interests. Whatever the arrangement, appointing a hybrid or separate GAL in a juvenile case presents difficult questions about the relationship between the lawyer who represents a child’s interests, and one who represents the child’s best interests. They may, obviously, represent conflicting positions. The conflict may, and usually will, make it impossible for one lawyer to fill the “hybrid” role. The likely result, therefore, is that a child will have two lawyers. One who represents the child’s interests, as the child articulates them, and a GAL, who represents the child’s best interests.


The Juvenile Justice Act
The Juvenile Justice Act (the “JJA”) has a number of potentially conflicting purposes. The JJA is to (1) “provide for the best interests of the child and the protection of the public . . . ;” (2) “promote the concept of punishment for criminal acts while recognizing and distinguishing the behavior of children who have been victimized or have disabilities . . . that require[] treatment or children with a cognitive impairment . . . ;” (3) remove, where appropriate, the taint of criminality from children committing certain unlawful acts;” (4) “provide treatment, training and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child . . . :” (5) provide for the care, the protection and the wholesome moral, mental and physical development of children . . . using the least restrictive . . . interventions;” (6) “be flexible and innovative . . . to reduce the commission of unlawful acts by children;”(7) “achieve the foregoing purposes in a family environment whenever possible, separating the child from the child's parents only when necessary for the child's welfare or in the interest of public safety . . . .” Accomplishing all, or even most, of those goals in one proceeding will be difficult, at best, and impossible, at times. It is difficult, for example, to foster a child’s “best interests” and, at the same time, provide for “punishment,” and to do both in a “family environment.”

The inherent difficulty in accomplishing numerous, and potentially conflicting goals, highlights the difficulties faced by lawyers who either represent a child, a child’s best interests, or both, in juvenile court. The difficulty is heightened by the United States Supreme Court’s holding that a juvenile faced with detention is the functional equivalent of an adult facing prison time because of an alleged commission of a crime. Both are entitled to the representation of a lawyer, not just a GAL to represent the child’s best interests.

In Wyoming, it is common for a child accused of having committed a delinquent act to be appointed a lawyer to represent his or her interests. It is not uncommon for the child to be appointed another lawyer, to act as GAL, to represent the best interests of the child. The potential for conflicts between the child’s interests and the GAL’s belief about the child’s best interests is clear. How the two should interact, particularly given that the delinquency action occurs in the context of the United States Supreme Court’s mandate that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,” and a child faced with juvenile detention has a right to counsel.


Juvenile Delinquency vs. Child Protection Cases
While there are some similarities between delinquency and child protection cases, there are important differences—differences which alter a GAL’s role significantly.

The first difference is the identity of the respondent. While a child protection case is directed against a child’s custodian for abuse or neglect of the child, a delinquency case begins with the filing of a petition by the county attorney directed at the child. The petition will contain the necessary jurisdictional allegations that form the basis for the claim that the child is a delinquent, including “the alleged law violated.”

Second, a delinquent child may be placed in “shelter care” or in “detention” pending court action. The possibility of being placed in “detention” raises a child’s right to counsel, not just to a GAL.

Third, the maximum potential duration of jurisdiction is longer. A child protection case lasts, unless earlier terminated by the court, until a child is 18, or longer in some cases. By contrast, delinquency cases last until a child “reaches 21 years of age.”

Fourth, long-term placement of a delinquent, not just temporary placement, may be in some form of “institution.”78 Among the institutions in which a juvenile delinquent may be placed are the Wyoming Girls’ School and the Wyoming Boys’ School, if the child is at least 12 years of age.

Fifth, the allegations of a delinquency petition must be proved “beyond a reasonable doubt.”

Finally, a child alleged to have committed a delinquent act may request a jury trial. A demand for a jury trial must be made “not later than ten (10) days after the party making the demand is advised of his right to a jury trial.” (Whether to request a jury trial is an issue reserved for clients. That should hold true for child clients facing detention, as well as adult clients, given the child’s right to due process, including the right to counsel.) If a jury trial is demanded, the jury is to determine “issues of fact.” “A finding by the jury that the allegations are true is not,” however, to be “deemed a conviction of guilt, but is a determination that judicial intervention is necessary for the best interest and welfare of the child and the public.”


Disposition in a Delinquency Proceeding
Once the court has taken jurisdiction, either through the admission of a child or a finding of delinquency, the MDT begins meeting (While an MDT may be appointed and meet before adjudication, “the court shall not consider any report or recommendation . . . prior to adjudication . . . without the consent of the child and the child's . . . custodian” except regarding a transfer hearing.) Before the court holds a “dispositional” hearing to determine how the case should proceed, the MDT is to meet and make recommendations to the court. “No later than five (5) business days prior to the dispositional hearing, the multidisciplinary team shall file with the court the multidisciplinary team report which shall include the multidisciplinary team's recommendations and the department case plan. . .”

Section 229 sets out the court’s dispositional powers in delinquency cases, and they are broad. A GAL needs to read and become familiar with what is potentially available to assist a child and the child’s family. The court has available many placement and treatment options for the child and his or her family. In addition, the JJA provides for “progressive sanctions,” and a GAL needs to be familiar with that concept and the statutory provisions regarding such sanctions (sections 14-6-245-252). The purposes of “progressive sanctions” are to:


  1. Ensure that juvenile offenders face uniform and consistent consequences and punishments that correspond to the seriousness of each offender's current offense, prior . . . , special treatment or training needs . . . ;

  2. Balance public protection and rehabilitation while holding juvenile offenders accountable;

  3. Permit flexibility in the decisions made in relation to the juvenile offender to the extent allowed by law;

  4. Consider the juvenile offender's circumstances; and

  5. Improve juvenile justice planning and resource allocation by ensuring uniform and consistent reporting of disposition decisions at all levels.


In deciding on the proper disposition, however, the MDT’s recommendations are critical. The court “shall review the predisposition report, the recommendations, if any, of the multidisciplinary team . . .” Furthermore, there is a presumption that the court will adopt the MDT’s placement recommendations as well as those of the predisposition report. If it does not, “the court shall enter on the record specific findings of fact relied upon to support its decision to deviate from the recommended disposition.”

An order of disposition remains in effect “for an indefinite period until terminated by the court whenever it appears the purpose of the order has been achieved and it is in the child's best interest . . . .” Unless sooner terminated by order of the juvenile court, a dispositional order in a delinquency case terminates when the child “reaches twenty-one (21) years of age.”


Summary
This overview of the statutes does not, and cannot, cover everything that a GAL or other attorney involved in a juvenile court proceeding should know about the statutes which govern child protection, CHINS, or delinquency cases. It is intended to provide an introduction, and any lawyer who is appointed as a GAL in a juvenile court proceeding should review the applicable statute carefully.

While there are many similarities among the statutes that govern child protection, CHINS, and delinquency cases, there are important differences. A GAL must be aware of those differences, as well as the context in which they arise. That is, a child who is subject to some form of detention has a right under the constitution of the United States to have a lawyer represent his or her interests, not just to a GAL to represent his or her best interests. Although a GAL in Wyoming is to play the “hybrid” role of both lawyer for the child and GAL, it will not always be possible to do both. If a conflict arises which precludes one lawyer from doing both, that lawyer needs to ask the court to appoint another lawyer to fill one role, usually to act as lawyer for the child.

By the time the February issue of the Wyoming Lawyer is published, the Public Defender’s Rules for the Guardians Ad Litem program should be finalized. Assuming they are, those rules will be the subject of the next column.


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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