Section 5: Proposed Duties for Guardians Ad Litem

A. Background

Since Brian Fraser's work in the mid-seventies, a significant body of literature has developed describing the broad roles and responsibilities of the guardian ad litem. In 1980, the National Legal Resource Center for Child Advocacy and Protection, a project of the American Bar Association's Young Lawyers Division, convened an invitational conference to discuss all aspects of representation for children in abuse and neglect proceedings. ⁸⁰ In a summary of the work of the professionals in attendance, there is a "partial" list of GAL responsibilities that was developed by consensus. It contains twenty-six separate responsibilities and includes such broad ranging duties as "hand-holding" to "assuring the child receives all financial, medical, and educational benefits due." ⁸¹ In addition, experts in the field have conducted research and published their findings on the impact of guardians ad litem and the outcome of children's cases. ⁸² One such expert developed ten comprehensive tasks of the child advocate. ⁸³

While most of these efforts share general principles, there is still no consensus regarding the true role of the GAL and what functions should be performed. One of the recommendations of the 1990 national evaluation of GAL representation was that roles and responsibilities of the GAL be clarified. Since one of the major objectives of the National CASA Association is to provide leadership in improving the current system of guardian ad litem representation, it convened a focus group in 1991 to consider the previous work on the role of the GAL, and to develop and recommend a set of guidelines that could be implemented uniformly in courts. The group, composed of judges, attorneys, and volunteer program managers, agreed that both attorneys and volunteers should be involved, but was not prepared to recommend which could best fill the GAL role. They did agree to develop a "job description" for GALs that detailed the duties that must be performed on behalf of the child whether by an attorney, a volunteer, another individual, or through a collaborative effort.

The focus group agreed initially on a set of fundamental principles that it felt provided the essential framework for effective GAL services. These principles include:

• The GAL must be independent from other parties. The GAL should have the freedom to explore options available to the child and family in order to assist the court in making an informed decision without compromising the doctrine of judicial impartiality. ⁸⁴ In conducting the search for options, the GAL should not simply agree with the social worker's recommendations without questioning them. The guardian should seek to determine the underlying causes of the family's problems independently and should explore ways to address the problems that may not be part of the social worker's proposed case plan. In order to fully protect the child's interests, the GAL should have no responsibility to any party other than the child. Employees of the petitioning agency, the court, or individuals with connections to any of the parties may not be objective. ⁸⁵
• The GAL must have knowledge of the child's cultural and ethnic heritage. Every child has the right to a GAL who is aware of and knowledgeable about the child's ethnic and cultural background. The process of deciding whether children should be reunited with parents or placed in an alternative permanent placement is a complex and difficult one. It is further complicated by a family 's ethnic, cultural, or language differences, which may cause misunderstandings on the part of both the family and the judge, and result in an incorrect evaluation of the family by the court. ⁸⁶ The needs of the child should be understood within the multidimensional context of family, culture, and society. ⁸⁷
• The GAL must be carefully screened and trained. The GAL screening process should include criminal and child abuse background records checks, face-to-face interviews, and recommendations of impartial references. Volunteers should be of good character, capable of mature judgment, and able to be flexible and open-minded.
• The GAL should also be required to participate in initial and ongoing training. At a minimum, issues covered should include: the roles and responsibilities of the GAL and the other parties to the proceedings; mediation and negotiation techniques; state statutes and court rules pertaining to the handling of child abuse and neglect cases; the operation of the court system including the nature of court hearings and understanding of the persons involved and their roles; cultural awareness; the roles of social service agencies and law enforcement; the developmental needs of children and their sense of time; characteristics of abusive and neglectful families and of children who are victims; and knowledge of the services available in the community for children and families. ⁸⁸
• The GAL's appointment should begin as early in the court process as possible and should continue until the case is finalized. Appointing GALs when petitions are first filed enables the guardians to determine and promote the child's interests for several important reasons. Early involvement allows more time for investigation and formulation of recommendations; it allows the opportunity to conduct the investigation before the parties become set in their positions and take on adversarial roles; ⁸⁹ it can minimize potential psychological harm to the child by providing the chance to negotiate a settlement thus avoiding lengthy court proceedings and out of home placement; ⁹⁰ and finally it ensures continuity for children who are likely to experience being moved from one foster home to another and one caseworker to another. Because a child's welfare is not secure even after disposition, the GAL must continue involvement until permanency is achieved through a return to the family home, adoption, or long term foster care. ⁹¹ The child's best interests may require that the guardian appeal an adverse decision .⁹² Though statutes in all but four states are silent on the duration of the GAL's appointment, ⁹³ the courts have generally supported the GAL's role through adoption proceedings. ⁹⁴
• The GAL must have immunity from liability when performing duties described in the job description unless an act, or failure to act, is willfully wrongful or grossly negligent.
• There must be methods to assure effectiveness of the GAL. Accountability should be expected at all levels of the provision of guardian ad litem services. Volunteers, attorneys, and the programs that oversee their performance should be evaluated against standards of quality on a regular basis.

B. Duties

Once these principles were identified, NCASAA's focus group developed the duties it agreed were necessary to effectively represent an abused or neglected child. A period of review by directors of some state volunteer programs, several local CASA/GAL program staff, and other organizations concerned with GAL representation resulted in some modification and revision. The following are the proposed duties of the GAL:

1. CONDUCT AN INDEPENDENT INVESTIGATION ⁹⁵

The first task in the investigation is to review all relevant documents and records including those of the social services department, police, court, physician, and school. ⁹⁶ Direct interviews with the child, parents, social workers, relatives, school personnel, and others having knowledge of the facts in the situation are crucial in getting a clear picture of the child's life. ⁹⁷ The GAL should continue seeking new information throughout the court process and should have regular in person contact with the child.

2. DETERMINE THE INTERESTS OF THE CHILD

Many factors should be considered in assessing the interests of the individual child, including current age and sense of time; ⁹⁸ level of maturity; culture and ethnicity; and degree of attachment to family members including siblings. Also important to the child's chances for healthy development are continuity, consistency, and a sense of belonging and identity. ⁹⁹

3. SEEK COOPERATIVE SOLUTIONS

The GAL functions as a mediator among conflicting parties to facilitate the resolution of problems and to foster positive steps toward achieving permanence for the child. ¹⁰⁰

5. APPEAR AT ALL HEARINGS TO REPRESENT THE CHILD’S INTERESTS

The GAL should ensure that all relevant facts are presented to the court. This means that the GAL should ensure that all necessary witnesses are called and should be prepared to provide testimony.

8. MONITOR IMPLEMENTATION OF SERVICE PLANS AND COURT ORDERS

The follow-up activities in a child's case are critical because this is often where the system fails.

The GAL is the watchdog who assures that court-ordered services and tasks are completed in an appropriate and timely manner and that they accomplish the desired outcome. ¹⁰³ The GAL should also monitor the court process to assure that hearings are held in a timely manner.

9. INFORM THE COURT PROMPTLY OF IMPORTANT DEVELOPMENTS

The court should be made aware of an agency's failure to provide a court-ordered service or the family's failure to participate in services. The GAL should ensure that appropriate motions are filed on behalf of the child in order that the court can be made aware of changes in the child's circumstances and can take the appropriate action.

10. ADVOCATE FOR THE CHILD’S INTERESTS IN THE COMMUNITY

The GAL should interface with mental health, educational, and other community systems to assure that the child's needs in all these areas are met.