Guardians Ad Litem in Child Abuse and Neglect Proceedings

3. Suzanne Martinez, Guardian ad Litem Requirements of the Child Abuse and Prevention Act -Public Law 93-247-Should They be Changed?, in NATIONAL GUARDIAN AD LITEM POLICY CONFERENCE MANUAL 45,52 (A.B.A. rev. ed. 1982) [herein after CONFERENCE MANUAL]. back to 3

4. Clarence B. Norman, Should There Be Changes In the Guardian ad Litem Language Contained In P L 93-247 Child Abuse Prevention and Treatment Act, in Conferences MANUAL, supra note 3, at 52, 56. back to 4

6. DONALD N. DUQUETTE, ADVOCATING FOR THE CHILD IN PROTECTION PROCEEDINGS: A HANDBOOK FOR Lawyers AND COURT APPOINTED SPECIAL ADVOCATES 7 (1990). back to 6

7. Howard Davidson, The Guardian ad Litem: An Important Approach to the Protection of Children in PROTECTING CHILDREN THROUGH THE Legal System 835, 836-37 (1981). back to 7

8. CARMEN RAY-BETTINESKI, NAT'L COURT APPOINTED SPECIAL ADVOCATE ASS'N, COURT APPOINTED SPECIAL ADVOCATE: A GUIDE FOR YOUR COURT 3 (1985). back to 8

9. National Court Appointed Special Advocate Association, January 1993 Statistics. back to 9

10. U.S. DEP'T OF HEALTH & HUMAN SERV., CSR, INC., NATIONAL STUDY OF GUARDIAN AD LITEM REPRESENTATION 41 (1990) [hereinafter NATIONAL STUDY]. back to 10 10 10

11. Brian G. Fraser, Independent Representation for the Abused and Neglected Child: the Guardian ad Litem, 13 CAL. W. L. Rev. 16, 17-18 (1976). back to 11

13. Fraser notes that skeletal trauma inflicted on children was identified in the 1950s by Silverman and Caffey. Kempe, however, coined the phrase "battered child syndrome" and brought it to the nation's attention in the 1960s. Fraser, supra note 11, at 18 n. 16.; See also John E. B. Myers, The Child, Parents and the State, in CHILDREN'S RIGHTS IN AMERICA: U.N. CONVENTION ON THE RIGHTS OF THE CHILD COMPARED WITH THE UNITED STATES LAW 87, 97 (Cynthia Price Cohen & Howard Davidson eds., 1990) (provides additional information on the American child protection movement). back to 13

14. See Duquette, supra note 6, at 23-26. See also Jill Korbin, Child Abuse and Neglect: The Cultural Context, 4 CHILD ABUSE & NEGLECT 3, 3-13 (1980) (ethnographic study has made clear not only the variety of parenting practices and societal attitudes toward children but also the importance of judging any behavior within a holistic cultural context). back to 14

15. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v. Massachusetts, 321 U.S. 158 (1944). back to 15

19. Donald C. Bross & Myra M. Munson, Legal Representation for Children, in CONFERENCES MANUAL, supra note 3; see also JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD 65-67 (1979). back to 19

20. Pub. L. No. 93-247, 88 Stat. 4 (1974) (codified at 42 U.S.C. §§5105-5107 (1988)); id. §4(b)(2)(G). back to 20

21. The regulations were amended in 1983 to implement the changes to the Child Abuse Prevention and Treatment Act contained in Title I of the Child Abuse Prevention and Treatment and Adoption Reform Act of 1978, Pub. L. No. 95-266. The regulations currently read that a guardian ad litem must "represent and protect the rights and best interests of the child." 45 C.F.R. § 1340.14(g) (1992).
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22. The only specificity given is that the GAL "shall not be the attorney responsible for presenting the evidence alleging child abuse or neglect. " 45 C.F.R. § 1340.14(g) ( 1992) . back to 22

24. Howard A. Davidson, The Guardian ad Litem for the Abused Child: Conceptual Influences and Unresolved Issues, in CONFERENCE MANUAL, supra note 3, at 14; see also Norman, supra note 4, at 54. back to 24

32. Id. at 26. The five states are Delaware, Florida, Hawaii, Nebraska, and South Carolina .
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38. Fourteen years after CAPTA, its 1988 reauthorization (Child Abuse Prevention, Adoption, and Family Services Act, Pub. L. No. 100-294, 102 Stat. 102 (1988)) required the National Center on Child Abuse and Neglect (NCCAN) to conduct a national study of guardian ad litem representation. NCCAN was directed to ( l ) investigate how individual legal representation has been provided in each state and (2) evaluate the effectiveness of different models of GAL representation. The first part of that evaluation, conducted by CSR, Inc., a Washington, D.C. consulting firm, was published in 1990 under the title National Study of Guardian Ad Litem Representation. See supra note 10. back to 38

44. After the report was published, NCASAA received a number of calls from various state programs expressing concern about the information reported for their individual states. back to 44

46. To Establish a National Center on Child Abuse and Neglect, 1973: Hearings on H.R. 6379, H.R. 10552,and H.R. 10968 Before the Subcomm. on Select Educ. & Labor, 93d Cong., 1st Sess. 31 (1973) (statement of Brian Fraser, Attorney), noted in Davidson, supra note 24, at 15. back to 46

47. MODEL RULES OF PROFESSIONAL CONDUCT Rule I .14(a) (1992) (mental disability or "some other reason" is also included under this rule). back to 47

48. For example, Wisconsin requires that children over the age of twelve have counsel appointed to present their wishes to the court, but children under twelve may have a GAL appointed to represent best interests. WIS. STAT. § 48.23 (3)(m) (1989). Hawaii requires that the GAL present both the child's wishes and best interests when there is disagreement. HAW. REV. STAT §587-34(c) (1993). back to 48

49. Courts have also been inconsistent in their guidance. See, e.g., In re Marriage of Barnthouse, 765 P.2d 610 (Colo. Ct. App. 1988), cert. denied, 490 U.S . 1021 (1989) (attorney appointed for the child should present all evidence available regarding child's best interests, not merely repeat child's expressed wishes); In re Marriage of Rolfe, 699 P.2d 79 (Mont. 198S) (where child's attorney has perception that the child's interests clash with the child's wishes, the attorney is obligated to advocate the child's best interest); contra, In re Baby Girl Baxter, 479 N.E.2d 2S7 (Ohio Ct. App. 1985) (where lawyer/guardian ad litem has a role conflict, he should petition court to permit him to withdraw as guardian ad litem, and court should grant such a request); Howard A. Davidson, The Child's Right to Be Heard and Represented in Judicial Proceedings, 18 PBPP. L. Rev. 2SS, 263, n.26 (1991); see also A.B.A. ANNOTATED RULES OF PROFESSIONAL CONDUCT 243 (2d ed. 1992). back to 49

50. LEGAL RIGHTS OF CHILDREN § 7.17 (Robert M. Horowitz & Howard A. Davidson eds., 1984). back to 50

53. Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of DecisionMaking Capacity. 17 FAM. L.Q. 287 (1983). back to 53

57. Howard Davidson, Collaborative Advocacy on Behalf of Children: Effective Partnerships Between CASA and the Child's Attorney, LAWYERS FOR CHILDREN 17, 23 (1990). back to 57

58. See, e.g., In re Order Compelling Production for In Camera Review of Records of Joyce L. Maraziti, 559 A.2d 447 (N J. Super. Ct. App. Div. 1989). back to 58

59. See, e.g., Ross v. Gadwah, 554 . A.2d 1284 (N.H. 1989) (attorney-client privilege does not apply to guardian ad litem, even if they are attorney(s)). back to 59

60. See e.g., S.S. v. D.M., 597 A.2d 870 (D.C. Cir. 1991) (new counsel should have been appointed as child's advocate when attorney GAL was called as witness in the case). back to 60

64. OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, NATIONAL INSTITUTE OF JUSTICE REPORTS, INTRODUCING CASA 6 (SNI-192, JULY 1985) [hereinafter INTRODUCING CASA]. back to 64

65. Carmen Rae, Community Volunteer Programs: Court Appointed Special Advocate (on file with the NCASAA Archives). back to 65

69. Donald N. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. MICH. J.L. REF. 389 (Winter 1987) (as a result of this finding, the researchers treated the three kinds of demonstration representatives as one group for subsequent analysis which compared activities and case outcomes). back to 69

72. Id. at 380 n.66. The note also reports that the project interviewer, a student in the University of Michigan School of Social Work, rated the volunteers significantly higher than either the law students or the trained attorneys on their knowledge of the case and understanding of the problems involved in the case. See also Donald N. Duquette & Sarah H. Ramsey, Using Lay Volunteers to Represent Children in Child Protection Court Proceedings, 10 CHILD ABUSE & NEGLECT 293 (1986), for more information on this study. back to 72

73. 1 LARRY CONDELLI, CSR, INC., NATIONAL EVALUATION OF THE IMPACT OF GUARDIANS AD LITEM IN CHILD ABUSE OR NEGLECT JUDICIAL PROCEEDINGS (1988). This study was authorized by the Evaluation Branch, Administration for Children, Youth and Families, and it is the prior phase of the 1990 study in supra note 10. back to 73

74. Id. at 66. CASA volunteers were generally viewed as having excellent investigation and mediation skills. Respondents also stated CASAs were good at reporting interpersonal aspects of the case. They were seen as particularly effective in cases where a quick response was needed, with older children, and where a good mediator was needed. back to 74

75. 2 LARRY CONDELLI, CSR, INC., NATIONAL EVALUATION OF THE IMPACT OF GUARDIANS AD LITEM IN CHILD ABUSE OR NEGLECT JUDICIAL PROCEEDINGS 9-10 (1988). Best interest measures were defined as the total number of services ordered, average number of services ordered per hearing, number of courtordered changes in case plans, time between all hearings, time between court reviews, and maintenance of the initial goal of reunification. back to 75

76. John Poertner & Allan Press, Who Best Represents the Interests of the Child in Court?, 69 CHILD WELFARE 537 (1990). back to 76

77. Id. at5 41. Outcome measures were defined as outcomes for the family or child: length of time the case was within the judicial system; disposition of the case; disposition of the case as to whether or not the child stayed with abuser; and reentry into the judicial system. back to 77

78. Id. at 548. Although the researchers cannot explain the differences, they suggest that volunteers are more persistent with the court in termination of parental rights and with the state agency in obtaining an adoptive home. back to 78

79. NCASAA 1990 statistics (based on data obtained from the King County Guardian ad Litem Program and the Florida Guardian ad Litem Program). back to 79

80. Howard A. Davidson, Final Report: National Guardian Ad Litem Policy Conference, in CONFERENCE MANUAL, supra note 3, at 1. back to 80

82. See, e.g., Duquette & Ramsey, supra note 69; Poertner & Press, supra note 76. back to 82

83. These tasks are: (1) investigation; (2) consultation; (3) assessment; (4) identifying the child's interests; (5) permanency planning; (6) client counseling; (7) decision making; (8) problem solving and mediation; (9) identifying action steps; and (10) following up on action steps. DUQUETTE. supra note 6, at 36. back to 83

84. Tara Lea Muhlhauser, From "Best" to "Better": The Interests of Children and the Role of a Guardian ad Litem, 66 N.D. L. Rev. 633, 639 (1990). back to 84

86. Shareen Abramson, Use of Court-Appointed Advocates to Assist in Permanency Planning for Minority Children, 70 CHILD WELFARE 477, 478 (1991). back to 86

88. See generally, NCASAA, COMPREHENSIVE TRAINING MANUAL FOR THE CASA/GAL (1989), for discussion of these issues. back to 88

89. Nancy Neraas, Comment, The Non-Lawyer Guardian ad Litem in Child Abuse and Neglect Proceedings: The King Co., Washington Experience, 58 WASH. L. REV. 853, 858 (1983). back to 89

90. See, e.g., GOLDSTEIN ET AL., supra note 19, at 31-32 (exploring psychological harm). back to 90

91. Abigail B. Sivan & Mary Quigley-Rick, Effective Representation of Children by the Guardian ad Litem: An Empirical Investigation, 19 BULL. AM. ACAD. PSYCHIATRY L. 53, 56 (1991). back to 91

92. Fraser, supra note 11, at 30. See also In re Scottie D., 406 S.E.2d 2 14 (W. Va. 1991) (GAL has right to appeal denial of termination of parental rights of the father). back to 92

93. Sivan & Quigley-Rick, supra note 91, at 56 (Colorado, Florida, Ohio, and Oklahoma are cited as the states). back to 93

94. See, In re Christina D., 525 A.2d 1306 (R.l. 1987) (GAL has standing to represent child in adoption proceedings). back to 94

95. General agreement exists on the guardian's role as investigator. See. e.g., Fraser, supra note 11 at 33; DUQUETTE, supra note 6, at 38-39. back to 95

96. Fraser lists the following specific documents as being crucial to the guardian's investigation: (1) initial report of suspected child abuse; (2) the intake report; (3) mandated agency's investigatory report; (4) any follow-up reports required of the mandated agency; (5) any police reports; (6) any medical, psychological, or psychiatric reports; (7) any relevant records in the central registry; and (8) any photographs or x-rays that have been made of the child. Fraser, supra note 11, at 36. back to 96

97. Duquette notes that it is not the advocate's role to make a case for or against the abuse or neglect petition, as that is the role of the protective services workers, law enforcement, and attorneys for the state and the parents. It is important to have knowledge of the evidence to be presented in order to make an assessment of potential harm to the child if he or she remains or returns to the alleged perpetrator. DUQUETTE, supra note 6, at 39. See also NCASAA, Communication and Information Gathering, COMPREHENSIVE TRAINING MANUAL FOR THE CASA/GAL 7:3-89 (1989). This is a training curriculum recommended by NCASAA for all volunteers before they are appointed . It is based on the skills/knowledge necessary to perform advocacy . Investigation through interviewing is one unit of training. back to 97

98. See GOLDSTEIN ET AL., supra note 19, at 4049 (a child's sense of time is based on "the urgency of their instinctual and emotional needs"). back to 98

99. See, e.g., David Murphey, Identifying the Best Interests of the Child, in DONALD N. DUQUETTE, ADVOCATING FOR THE CHILD IN PROTECTION PROCEEDINGS: A HANDBOOK FOR LAWYERS AND COURT APPOINTED SPECIAL ADVOCATES 23-27 (Lexington Books 1990). See also NCASAA, The Child and Permanence, COMPREHENSIVE TRAINING MANUAL FOR THE CASA/GAL 5:1-97 (1989). back to 99

100. See, e.g., Michael R. Chamberlain & Gerald M . Eaton, Protecting the Abused and Neglected Child, 19 N.H. B.1. 25, 25 (1977) (authors point out that because an adversarial proceeding can be traumatic for the child, can promote deterioration of the parent-child relationship, and can damage parents' ability to assume their parental duties, the most important role of the GAL may be that of the negotiator). back to 100

101. See NCASAA, Juvenile Court Process, in COMPREHENSIVE TRAINING MANUAL FOR THE CASA/GAL 8:69-87 (l989). back to 101

102. It has been widely suggested that the role of the GAL should be extended beyond civil proceedings into criminal proceedings as well. See, e.g., Mark Hardin, Guardian ad Litem for Child Victims in Criminal Proceedings, 251. FAM. L. 687 (1986-87); see generally, DEBRA WHITCOMB, NAT’L INSTITUTE OF JUSTICE, GUARDIAN AD LITEM IN CRIMINAL COURTS (1988). While some volunteer GAL programs have broadened the role of volunteers into both criminal and custody proceedings, the National CASA Association's mission and standards are focused on representation for children in abuse and neglect proceedings. back to 102

103. Mark Hardin, Should the GAL's Duties Continue through the Foster Care Review? How Does P.L. 96-272, the Adoption Assistance and Child Welfare Act of 1980 Affect the GAL?, in CONFERENCE MANUAL, supra note 3, at 206, 212. See generally, NAT’L COUNCIL OF JUV. FAM. CT. JUDGES ET AL., MAKING REASONABLE EFFORTS: STEPS FOR KEEPING FAMILIES TOGETHER (1990). back to 103

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