Guides

CASA: A Guide to Program Development

Role of the Volunteer
Guiding Principles
Agreement with the Court
  -Frequent Communication

The Child Abuse Prevention and Treatment Act (P.L. 93-247), passed in 1974, for the first time required that children who are the subject of court proceedings, because of allegations of abuse or neglect, must have a court-appointed representative to speak for their best interests. The legislation did not describe the guardian’s duties, nor did it dictate whether the role had to be performed by a lawyer, although the tradition of appointing lawyers to perform this function continued in many courts. It was against this backdrop of lack of clarity that state and local communities developed systems of guardian ad litem representation. As a result, today children can be represented by an attorney, an attorney guardian ad litem, a paid non-attorney guardian ad litem, and/or a trained volunteer acting as the guardian ad litem or Court Appointed Special Advocate (CASA). There remains a great deal of confusion over the roles of each of these forms of representation, whether their efforts are duplicative, and how the representatives relate to each other when more than one is appointed to represent the same child.

It is within this context that new CASA programs must develop a relationship with their court and establish the duties of the volunteer and policies and protocols for relating to the other players in the system. A number of states have statutory language that specifies whether an attorney or volunteer may be appointed the guardian ad litem; other state statutes detail the roles and responsibilities of the volunteer, what their qualifications and training must be, and what their rights and powers are.

There are still a number of states, however, that provide great discretion to the local courts. If your state is one of these, you will find variations in volunteer activities among your neighboring programs and sometimes even between different judges in the same court. The most common differences you will find involve the volunteer’s role (including whether the volunteer is a full and independent party to the case), the formal status of the volunteer, the forms of attorney representation, the formal relationship between the volunteer and attorney for the child and the types of cases accepted.

You should become very familiar with what your state law says and how the law is implemented by local courts throughout the state. Your state organization should be able to provide you with a copy of the law and describe how local programs operate to comply.

There are five generally accepted activities associated with the guardian ad litem role:

• Fact finding information gathering;
• Legal representation;
• Negotiation/mediation;
• Case monitoring; and
• Resource brokering.

Fact finding or information gathering involves meeting with, interviewing and observing the child repeatedly over a period of time; visiting both the child’s and the parents’ homes; contacting caseworkers; reading the petition; reviewing the case record; and contacting other adults who might have pertinent information. These activities are those which help the advocate gain insight into what is best for a child, what kinds of services might be helpful, and what support is needed to move toward permanency.

Legal representation is the one function that must be performed by a licensed attorney. This includes appearance at hearings, filing of motions and other legal papers, and advising the child on legal issues. In this role the child’s advocate may provide testimony, make recommendations to the court regarding the case plan, placement of the child, services to be provided, and visitation issues.

The third activity area is meditation and negotiation, including the development of agreements and stipulations. The fourth is case monitoring, including maintaining contact with the child and other parties, monitoring the child’s special needs, and following up on court orders. The final activity area is resource brokering, including working in the community to help the child obtain needed services.

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Guiding Principles

Because local practice, including the understanding and wishes of your local judge, will help to determine how your program operates, it is important to establish mutually agreeable goals and expectations at the very earliest stages of program development. Regardless of the parameters of the volunteer’s activities within the court, there are some guiding principles that will support quality advocacy. It is important to keep them in mind as you plan the approach to representation to be taken in your community.

• The volunteer must have access to legal support. Regardless of the program model, lay volunteers do not participate in the case as legal counselors to the child, but as individuals appointed to represent the child’s best interests. Nor does the volunteer provide legal services in fulfilling their role. Established programs obtain legal assistance for their volunteers in a number of ways. Some programs -- usually those administered by state agencies -- have an attorney on the CASA staff or assigned to their program by the state attorney general's office. A number of programs contract with a private attorney when the need arises and some request the court appoint an attorney to represent the volunteer when necessary. Most other programs rely on pro bono (volunteer) legal assistance. In some programs, one or several established law firms in the community provide pro bono services to CASA. In other areas, the local bar association or the young lawyers division of the bar have agreed to donate their time.

• The volunteer must be independent. This means that no one with ties to any of the parties should serve in this role. It also means the volunteer must be permitted to conduct a thorough fact-finding investigation. There should be no conflict or fear of retribution against the program that would make it difficult for this person to present recommendations consistent with the child's interests.

• The volunteer should be appointed to the case at the earliest possible time and should remain involved until the child is in a legally sanctioned permanent placement and the case is dismissed from the court system. It is important to note that although the volunteer is appointed prior to adjudication, he or she does not investigate the allegations of abuse and neglect. His/her role during the initial stages of a case (prior to the court's ruling on the allegations) is to gather facts related to the child's past and current situation; to determine what services have been previously provided to prevent foster care placement and to assess what services are necessary to meet the child's needs and to reunify the family.
• The volunteer should receive notice of all hearings, staffings, and other case conferences related to the child. In addition, the volunteer should receive copies of all requests for discovery and responses, copies of correspondence and other appropriate documents.
• The CASA volunteer should have complete access to all information related to the child and his or her situation. Such information may include: records of social service agencies, law enforcement, the court, schools, public health, medical providers, substance abuse treatment, and mental health history. The volunteer must also be allowed to interview: the child, parents, social services staff, law enforcement personnel, and any other individuals who have knowledge of the child.
• The volunteer should have immunity from liability for performing their role in a responsible manner. As an officer of the court, the volunteer usually has statutory immunity from liability when performing duties described in his/her job description unless an act, or failure to act, is willfully wrongful or grossly negligent. If immunity is not prescribed in your state law, the court should address it in court rules or on the order of appointment for the volunteer.

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A written agreement with the court is an excellent way to define the goals and expectations of the relationship between the court and the CASA program. Once it is developed, it should be signed by all judges who will be appointing volunteers, the president of the CASA board, and the program’s executive director. The agreement should be reviewed annually and modified or refined as the need arises. What is covered by the agreement will vary based on local wishes. The following are issues that might be included:

• Role and duties of the volunteer;
• Criteria for cases to be referred for volunteer assignment;
• Procedures for prioritizing cases when an adequate number of volunteers is not available;
• Procedures for the court’s referral of cases to the program and the program’s selection of the appropriate volunteer to be assigned;
• Procedures for the court’s feedback on the performance of volunteers;
• Expectations regarding volunteer reports submitted to the court, eg. format, deadline, distribution, etc.

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There will be many issues to emerge that will go beyond the scope of the written agreement. For this reason, it is important to build in frequent face to face opportunities for communication between the director and the presiding judge. It may be difficult because of the competing demands on the judge’s time. The director should be flexible but persistent in pursuing regular meetings because they present the best opportunity for the court to be made aware of the ramifications of its directions and permit the airing of any court-related difficulties that have arisen within the program. Though it is inappropriate for a presiding judge to sit on the board of a program, his or her input and consideration is critical to the healthy functioning of the program. There must also be an arena for timely resolution when differences of opinion occur.