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Legally Speaking

 

Issue: August, 2005
Author: John M. Burman

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Ethically Speaking - Wyoming’s New Payment and Practice Standards for Guardians ad Litem in Juvenile Court

By statute, juvenile courts are required to appoint guardians ad litem (GALs) to represent the best interests of many children involved in juvenile court, especially those in cases involving abuse or neglect (Child Protection Act), and those in which a child is in need of supervision – a so-called CHINS case). A child charged with a delinquent act that could result in detention is generally entitled to an attorney to represent his or her interests, as opposed to a GAL to represent the child’s best interests. The attorney may also “be the guardian ad litem” for the child. Even if not appointed as both attorney and GAL, the attorney in a delinquency case is directed to “consider among other things what is in the best interest of the child.”

A conflict of interest may arise between what an allegedly delinquent child wants and what is thought to be in his or her best interests. A child, for example, may want to avoid treatment for a substance abuse problem that may have led to the delinquent act, while a GAL may think treatment would be in the child’s best interests. When that occurs, Wyoming’s Juvenile Justice Act authorizes the appointment of a GAL, as well as an attorney for the child.

Until the 2005 legislative session, payment for GALs in Child Protection and CHINS actions was the responsibility of the counties. Even though payment for public defenders to represent children in delinquency actions is a combination of state (85%) and county funds, payment for GALs in delinquency cases was a county responsibility. As a result of having counties responsible for paying for GALs, payment rates varied widely. While GALs in a few counties received relatively decent compensation, GALs in many counties received little compensation and/or had an extremely high number of cases. That has now changed. Legislation passed during the 2005 Session contained an appropriation of state funds to greatly supplement county funds, as well as a requirement that attorneys who act as GALs receive training in representing children.


The Statute

Enrolled Act 237 (“the Act”) appropriated funds and required the establishment of standards for GALs and training programs to enable GALs to meet those standards. The Act appropriates $2.1 million dollars in state funds, to be matched by twenty-five percent county funds, to “reimburse attorneys [for] providing legal representation as guardians ad litem in child protection cases . . . children in need of supervision cases . . . or termination of parental rights actions brought as a result of a child protection or children in need of supervision action.” The expenditure of funds is subject to the establishment of performance standards and training requirements. The responsibility for establishing the standards and requirements was delegated to the District Judges’ Judicial Council (“the Council”), which was to make a recommendation to the Board of Judicial Policy and Administration (“the Board”). Responsibility for implementing and administering the program was given to the Supreme Court.

The juvenile courts in Wyoming are part of the district courts, so every district court judge is also a juvenile court judge. District court judges are “free of administrative and fiscal control by the supreme court.” They are governed, instead, by “a judicial conference composed of all district judges . . ..” That conference was given the authority to recommend to the Board of Judicial Policy and Administration, “rules and regulations governing standards” for GALs and standards “for training.” While the Act delegated the authority to establish standards for GALs, the Act required that the standards address two issues.

First, the standards for GALs must “ensure that their [GALs] advice remains independent of private providers.” Second, the standards must require GALs to “consider cost impacts and savings to the State of Wyoming.” The former requirement is part of a GAL’s ethical duty to act in a child’s “best interests.” Similarly, while cost is an appropriate consideration, a GAL remains bound, both ethically and legally, to make a recommendation that is in the best interests of the child, regardless of the fiscal impact.

The Act requires the Council to make recommendations about standards and training to the Board, which has ultimate authority to promulgate those standards as rules. That was done. The Council recommended that a new rule, Rule 106, be added to the Uniform Rules for District Courts. The Board accepted that recommendation, and the new Rule was adopted by order signed by Chief Justice Hill with an effective date of July 1, 2005.

The Act authorizes the Wyoming Supreme Court to administer the GAL program and to hire one full-time equivalent “to assist in the administration of the reimbursement program . . ..” Its responsibilities include “enter[ing] into agreements with the individual counties” that wish to receive state funds to assist in reimbursement of GALs. No county may receive and pay state funds unless the county agrees to match the state funds; the state will pay seventy-five percent of GAL fees, provided the county pays the other twenty-five percent. The Supreme Court is also to monitor the program and “shall report each year . . . to the joint judiciary interim committee [the] results of the program . . ..”

The Act and the new rule both became effective on July 1, 2005.29


Rule 106

Since juvenile courts are part of the district courts, the rule to implement the GAL program is part of the Uniform Rules for District Courts of the State of Wyoming. In particular, the standards and training requirements are contained in the new Rule 106 of the Uniform Rules.



Overview of the Rule

Rule 106 (“the Rule”) is divided into eight subparts, each of which is discussed briefly below.


1. Applicability

The Rule applies to four types of proceedings:

(a) Child Protection cases under Wyo. Stat. §§ 14-3-401 through 14-3-440;
(b) Child in Need of Supervision (“CHINS”) cases under Wyo. Stat. §§ 14-6-401 through 14-6-440.
(c) Termination of Parental Rights actions “brought as a result of child protection” or CHINS actions; and
(d) Juvenile Delinquency actions in which an attorney is appointed “to serve only as a guardian ad litem . . ..”

2. Role of Attorney Guardian ad Litem

The Rule adopts the “hybrid” model, in which the attorney represents both “the child and . . . the child’s ‘best interests.’” Under this model, the attorney/GAL ultimately “advocates for a result which he/she believes (not necessarily what the child believes) is in the child’s ‘best interests.’”

This mandate is consistent with Rules 1.2, 1.4, and 1.14 of the Wyoming Rules of Professional Conduct, especially Rule 1.14(c), which says that “[a] lawyer appointed to act as a guardian ad litem . . . of an individual represents the best interests of that individual, and shall act in the individual’s best interests even if doing so is contrary to the individual’s wishes.”

While the attorney/GAL has ultimate authority to decide what is in the child’s best interests, the GAL must “consider the child’s wishes,” and if the GAL and the child disagree, “both the child’s wishes and the basis for the attorney guardian ad litem’s disagreement must be presented to the court.”

Current law permits a juvenile court to appoint an attorney to represent a child and a GAL to represent the child’s best interests when a serious conflict of interest arises. The Rule adopts the same approach, allowing dual appointment “[w]hen justice requires.”

Finally, Part 2(d) adopts the holding of Clark v. Alexander that a GAL “may not be a witness or testify . . ..”

3. Best Interest

The Rule defines “best interest” as “a determination of the most appropriate course of action based on objective considerations of the child’s specific needs and preferences.”

The definition is consistent with Rule 1.2(f) of the Wyoming Rules of Professional Conduct, which says that a lawyer “appointed to act as a guardian ad litem . . . of an individual . . . shall represent what he or she reasonably believes to be in the best interests of the individual.” The term “reasonably believes” is defined to mean the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.” “Reasonable” is then defined as the conduct of “a reasonably prudent and competent lawyer,” i.e. the conduct of an objectively reasonable lawyer.

4. General Responsibilities of a Guardian ad Litem

Rule 106(a) notes that a GAL “shall possess the knowledge and training necessary” to fulfil the role of a GAL. The specific requirements are contained in the Guidelines that appear below.

5. Qualifications and Caseloads

An attorney who wishes to serve as a GAL under the Rule must meet certain training requirements and not have too many cases. The training requirements are discussed in the following Section. The Rule limits a full-time GAL to not more than sixty-five “juvenile cases.”

6. Training The Rule requires both initial training and continuing training.

Initial Training – A lawyer may not accept an appointment and receive reimbursement after July 1, 2005, “unless the lawyer has received, since July 1, 2003, ten (10) or more hours of child related training . . . . “ or has “recent training, experience or both, which is “reasonably equivalent.” Attorneys who have ongoing appointments as of July 1, 2005, must meet the ten hour requirement “on or before December 31, 2005.”

Continuing Training – An attorney who wishes to maintain the ability to accept appointments and receive reimbursement under the Rule must receive “five (5) hours of continuing legal education . . .” per year. That five hours is part of and is not in addition to the requirement that Wyoming lawyers receive fifteen hours of CLE per year.

7. Payment

The Supreme Court and each county must determine the hourly rate at which GALs should be paid, with the State paying 75% and the County 25% of the agreed upon amount.

8. Selection of Guardians ad Litem; Inclusion on Panel

This part of the Rule outlines the administrative process that lawyers must follow if they want to be approved to receive payments under the Rule.

Guidelines for Guardians ad Litem

Every child and every case involving a child is different, meaning that GALs must adapt their investigations and recommendations to each set of unique circumstances. Despite those inherent differences, representing children and their best interests is now recognized as a speciality with generally applicable standards and guidelines. The guidelines that follow are based on the ABA Standards for child representation, modified to reflect the requirements of Rule 106.

A. General Guidelines

1. Be familiar with the applicable legal and ethical standards (Rule 106 (4)(b)(1) & (2)). Those standards include:

a. Uniform Rules of District Court, Rule 106 Attorney Guardians ad Litem Representation Standards for Appointments in Juvenile Court and Termination of Parental Rights.

b. Wyoming Child Protection Act (Wyo. Stat. §§ 14-3-401 through 14-3-440).

Wyo. Stat. § 14-3-416. Appointment of guardian ad litem.

“The court shall appoint a guardian ad litem for a child who is a party to proceedings under this act if the child has no parent, guardian or custodian appearing in his behalf or if the interests of the parents, guardian or custodian are adverse to the best interest of the child. A party to the proceeding or employee or representative thereof shall not be appointed guardian ad litem for the child.” (Emphasis added);

c. Child in Need of Supervision Act. (Wyo. Stat. §§ 14-6-401 through 14-6-440).

Wyo. Stat. § 14-6-416. Appointment of a guardian ad litem.

“The court shall appoint a guardian ad litem for a child who is a party to proceedings under this act if the child has no parent, guardian or custodian appearing in his behalf or if the interests of the parents, guardian or custodian are adverse to the best interest of the child. A party to the proceeding or employee or representative thereof shall not be appointed guardian ad litem for the child.” (Emphasis added);

d. Termination of Parental Rights (Wyo. Stat. §§ 14-2-308 through 14-2-319.

Wyo. Stat. § 14-2-312. Hearing; appointment of a guardian ad litem.

“After the petition 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.” (Emphasis added);

e. Juvenile Justice Act (Juvenile Delinquency) Wyo. Stat. §§ 14-6-201 through 14-6-252). Juveniles involved in delinquency actions are entitled to an attorney and do not normally have a GAL. Rule 106 provides, however, that the Rule applies to attorneys “appointed to serve only as guardians ad litem in a delinquency action . . ;”

Wyo. Stat. § 14-6-216. Appointment of guardian ad litem.

“The court shall appoint a guardian ad litem for a child who is a party to proceedings under this act if the child has no parent, guardian or custodian appearing in his behalf or if the interests of the parents, guardian or custodian are adverse to the best interest of the child;”

f. Wyoming Rules of Professional Conduct (as amended April 1, 2002).
Preamble [2]
Rule 1.2(f)
Rule 1.4(b) and Comments [3] & [4]
Rule 1.6(b)(3) and Comment [14]
Rule 1.14(c) and Comment [4]

g. Wyoming Supreme Court Opinions

Moore v. Moore, 809 P.2d 261 (Wyo. 1991).

“A guardian ad litem is the attorney for the minor whom he is appointed to serve. He participates in the proceedings as an advocate.”

“‘Guardians ad litem may not have ex parte communications with the judge.’”

Clark v. Alexander, 953 P.2d 145 (Wyo. 1999)

“‘[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. * * * In essence, the guardian ad litem role 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 bearing on the question will be brought before it untainted by the parochial interests of the parents.’”

Pace v. Pace, 22 P.3d 861 (Wyo. 2001)

“[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. Recommendations can be made to the court through closing argument based on the evidence received.”

Donnelly v. Donnelly, 92 P.3d 298 (Wyo. 2004).

“The district court's explicit instructions to and the thorough performance of the GAL were superlative in this case.”

“The record is also 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.”

h. Relevant Federal law, including: The Adoption and Safe Families Act (“ASFA”); The Child Abuse Prevention and Treatment Act (“CAPTA”); The Indian Child Welfare Act (“ICWA”), if the child is a Native American; and The Individuals with Disabilities Education Act (“IDEA”).

i. Be familiar with the dynamics of domestic violence, how it affects children, and how to determine if it exists in a particular case. (Rule 106(4)(b)(3)

2. General obligations

a. Obtain copies of all pleadings and other relevant documents (Rule 106 4.b.4.(a));

b. Participate in all judicial hearings, DFS hearings or meetings (especially MDT meetings), and any discovery, such as depositions (Rule 106 4.b.7);

c. Inform all other parties of your involvement as GAL and that you expect their cooperation. Ask the lawyers for other represented persons for permission to meet ex parte with their clients. Ask them, in writing, if there are persons or sources you should contact before making a recommendation.
d. Attempt to minimize delays and advocate for permanency planning; (Rule 106 4.b.8)

e. Counsel with the child about both the substantive and procedural aspects of the case (modify the methods and substance of the counselling to take into account the child’s age and maturity) (Rule 106(4)(b) & (c) and 106(5));

f. Develop and advocate a theory of the case;

g. Identify and advocate for the involvement of all appropriate resources, such as family members, DFS, school, etc. (Rule 106(4)(b)(6));

h. Retain independence, but “take into consideration cost impact and savings of potential service options, with an emphasis on services most likely to preserve families and avoid out-of-home placement, when appropriate.” (Rule 106 4. b. 9));

i. Determine “whether the child should attend hearings . . . . ” (Rule 106 (4)(b)(10));

j. Review court orders to ensure compliance with court’s actions and statutory requirements. (Rule 106 4(b)(11));
k Monitor the case to ensure implementation of the case plan and court orders. (Rule 106 (4)(b)(12)); and

l. Stay actively involved in the case until “formally relieved by court order or the court terminates its jurisdiction . . .” (Rule 106 (4)(b)(14)).

B. Checklist for GAL Investigation: Rule 106 requires that the GAL “[c]onduct a full and independent case investigation . . .” (Rule 106 (4)(b))


  • Obtain police records on all relevant parties (relevant parties are those who have significant involvement with the child, such as mom’s boyfriend or dad’s girlfriend). Make sure to retrieve any police records that may be in any of the counties/cities where the parents may have resided or had family contacts. Have records departments search for any prior reports that contain abuse, domestic abuse, neglect, alcohol, drugs, assaults, etc. Make sure to make copies for DFS and the county attorney (they will probably not have them). Be prepared to pay for the reports and allow for the time it will take to get reports.

  • Look for evidence of domestic violence (children who witness domestic violence are victims, just as are children who suffer violence). Police reports, regardless of whether there was a conviction, often contain such information. Also, screen each of the parents for domestic violence. Sample screening questions are attached as Exhibit A.

  • If there is any indication of domestic violence, consult with an expert on domestic violence about how to proceed, and consider asking the court to order the involved parties to undergo domestic violence evaluations before they are allowed to have unsupervised contact with the child.

  • Meet with child on regular basis to develop and maintain trust. Consistent with the child’s age and maturity, explain your role, that what you are told is generally confidential, but that you may disclose information to protect the child. Decide if the child should attend hearings.

  • Establish communications with foster parents and contact them on a regular basis (they often feel left out-of-the-loop and are a great source of information about the child). Make them aware of everything other than confidential communications from the child. If the child is not in foster care, you will need to contact the persons at the facility where the child is living.

  • Meet with DFS social worker assigned to the case. Remind DFS to check for prior reports of any family members.

  • Meet with parents, step-parents, or significant others. The first question for any such person, especially a parent, is if he or she has an attorney. If so, contact that attorney for permission pursuant to Rule 4.2 of the Wyoming Rules of Professional Conduct. If the person does not have an attorney, remember that Rule 4.3 applies and the only advice you may give a non-represented person is to consult an attorney. Interview persons separately.

  • Meet with other siblings and family members, if any.

  • Contact school for absence and tardy reports. Obtain IEP, if there is one. Speak with current teacher and past teachers, as well as school counsellors/therapists. Elementary school children have an assigned teacher. Junior or senior high children generally have a resource or homeroom teacher.

  • Contact attorneys of record for background information, etc.

  • Contact baby-sitters, daycare, or other caregivers and neighbors.

  • Meet with any school counsellors or private counsellors.

  • Call family physician, if any, to establish if child is regularly taken to doctor. Examine any hospital reports.

  • Home visitations. Observe living conditions. Drop in unannounced.

  • Attend supervised and unsupervised visitations. Observe.

  • Investigate community resources for family. (For alcohol and drug or other counselling, Mental Health Centers provide sliding scale services. Consider parenting classes, etc.) Consider whether out-of-home placement can be avoided.

At any hearings, you will generally be asked to give a recommendation on placement, including visitation with the parent(s). The first part of your presentation to the court will be to describe your investigation (it is important for the court to hear about your investigation so that the court can give your recommendation the appropriate weight), then make recommendations based on the investigation.

Although the GAL’s recommendation in a divorce case must be based on the evidence, “hearings under [the Child Protection Act] shall be conducted by the court without a jury in an informal but orderly manner . . .” The same standard applies in CHINS cases. Particularly after the court has taken jurisdiction, hearings are generally conducted less formally and the GAL is generally allowed to make a recommendation based on his or her investigation, rather than one based solely on the evidence (many juvenile hearings do not involve the formal presentation of evidence.)

C. Multidisciplinary Team (MDT): Membership and Activities

By statute, the GAL is a voting member of the MDT in Child Protection and CHINS cases. The other required members are: (1) the child’s parent or guardian; (2) a representative of the child’s school district; (3) a member of DFS; (4) the child’s mental health counsellor; (5) the district or county attorney or his or her designee; (6) any lay advocate appointed by the court; and (7) the child’s foster parent. The juvenile court may also appoint the child, a relative of the child, or any other professional or other person who has “particular knowledge relating to the child or his family, or expertise in children's services and the child's or parent's specific disability or special needs, including linguistic and cultural needs.” Membership and participation in the MDT process is a critical component of a GAL’s role.

The purpose of an MDT is clear. “The multidisciplinary team shall review the child's personal and family history, school, mental health and department of family services records and any other pertinent information, for the purpose of making case planning recommendations.”

The importance of an MDT is just as clear. “In determining the disposition to be made under this act in regard to any child:

(i) The court shall review the predisposition report, the recommendations, if any, of the multidisciplinary team . . .

(ii) If the court does not place the child in accordance with the recommendations of the predisposition report or multidisciplinary team, the court shall enter on the record specific findings of fact relied upon to support its decision to deviate from the recommended disposition.” (Emphasis added).

Given the purpose and importance of the MDT process, a GAL must be closely involved in it. In particular, the GAL should prepare for, attend, and play an active role at meetings of the MDT. According to the Rule, a GAL shall “participate in . . . multi-disciplinary team meetings . . .” The following checklist is designed to assist a GAL in preparing for MDT meetings.


Checklist for Preparing for MDT meeting:

NOTE: DFS is in the final stages of preparing guidelines for MDTs. When they become available, they will be a primary source of information about MDTs and MDT meetings.

  • Review Wyo. Stat. § 14-3-427 or 14-6-427 (role of MDT in Child Protection and CHINS cases, respectively) and 429(a) of the appropriate chapter (use of MDT recommendation by court).

  • Review entire file and catch up on loose ends.

  • Speak with each of the parties involved to update the case.

  • Speak to DFS social worker to see what goals DFS would like to be achieved so you can anticipate how to vote and what further investigation needs to take place.

  • Let DFS know what goals and topics of discussion you would like to see included in the MDT.

  • Speak to each voting member to see how he or she will vote on possible issues and ask what concerns the member will bring up at the meeting. Ask if he or she will use a proxy and, if so, who the proxy is. If there is a proxy then speak to him or her and educate the person as to the facts of the case. If the proxy hasn’t followed the case, the proxy will have difficulty making an informed decision.

  • Invite the foster parents to the MDT and encourage them to speak up at the meeting, and tell DFS you have done so.

  • Discourage other members from agreeing that the child attend. Age and maturity will be determining factors of whether the child should attend. Whether or not persons will be candid with a child in the room should also be considered.

Your goal is a case plan with achievable goals. If family reunification seems questionable, push for a concurrent plan to provide permanency for the child if family reunification fails.


Exhibit A

Domestic Violence Screening Questions

A victim of domestic violence, or a batterer, is unlikely to identify herself or himself as such unless asked directly, even if the violence is a primary factor in the removal of a child from the home. Since the existence of a violent relationship is critical to a GAL's recommendation about custody or visitation, and since the parent or child is unlikely to voluntarily disclose the necessary information, it becomes incumbent upon the GAL to take the initiative to discover what is really going on.

The following screening guidelines are based on recommendations from the American Bar Association's Commission on Domestic Violence:

  • To be an effective GAL, I need to know about all of the issues which affect the child. For this reason, I routinely ask the following questions.

  • Everyone argues or fights with his or her partner or spouse now and then. When you argue or fight at home, what happens? Do you ever change your behavior because you are afraid of the consequences of a fight?

  • Do you feel that your partner or spouse treats you well? Is there anything that goes on at home that makes you feel afraid?

  • Has your partner or spouse ever hurt or threatened you or your children? Has your partner or spouse ever put his or her hands on you against your will? Has your partner or spouse ever forced you to do something you did not want to do? Does your partner or spouse criticize you or your children often?

  • Has your partner or spouse ever tried to keep you from taking medication you needed or from seeking medical help? Does your partner refuse to let you sleep at night?

  • Has your partner or spouse ever hurt your pets or destroyed your clothing, objects in your home, or something which you especially cared about? Does your partner or spouse throw or break objects in the home or damage the home itself during arguments?

  • Does your partner or spouse act jealously, for example, always calling you at work or home to check up on you? Is it hard for you to maintain relationships with your friends, relatives, neighbors, or co-workers because your partner or spouse disapproves of, argues with, or criticizes them? Does your partner or spouse accuse you of flirting with others or having affairs?

  • Has your partner or spouse ever tried to keep you from leaving the house?

  • Does your spouse or partner make it hard for you to find or keep a job or go to school?

  • Every family has its own way of handling finances. Does your partner or spouse withhold money from you when you need it? Do you know what your family's assets are? Do you know where important documents like bank books, check books, financial statements, birth certificates, and passports for you and members of your family are kept? If you wanted to see or use any of them, would your partner or spouse make it difficult for you to do so? Does your spouse or partner sometimes spend large sums of money and refuse to tell you why or what the money was spent on?

  • Has your spouse or partner ever forced you to have sex or made you do things during sex that make you feel uncomfortable? Does your partner demand sex when you are sick, tired, or sleeping?

  • Has your spouse or partner ever used or threatened to use a weapon against you? Are there guns in your home?

  • Does your spouse or partner abuse drugs or alcohol? What happens?

A parent or child who answers "yes" to any one or even more than one question may not be a victim of domestic violence. Rather, the GAL needs to consider the answers collectively and follow up when appropriate. If the answers to the screening questions indicate domestic violence has occurred or is occurring, the GAL needs to consult with an expert in domestic violence before making any recommendation about custody or visitation.

Copyright © 2005 – Wyoming State Bar

     

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