2.2 The Guardian Ad Litem

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

2.2 THE GUARDIAN AD LITEM

2.201 In General. Black's Law Dictionary defines a guardian ad litem as "a guardian, usually a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party." ² In Virginia, the appointment of a guardian ad litem in the juvenile and domestic relations district court is governed by statute. ³ A guardian ad litem must be an attorney. ⁴ Rule 8:6 of the Rules of the Virginia Supreme Court states that the role of a guardian ad litem for a child is to "vigorously represent the child, fully protecting the child's interest and welfare." An attorney representing a child as guardian ad litem has a responsibility to inform the court of what he or she believes is in the best interests of the child. According to Rule 8:6, the lawyer also must advise the court of the actual wishes of the child where those wishes conflict with what the guardian ad litem believes is in the child's best interests and welfare.

2.202 Qualification. In accordance with section 16.1-266.1 of the Virginia Code, the Judicial Council of Virginia has adopted standards to govern the appointment of attorneys as guardians ad litem pursuant to section 16.1-266. A member of the bar must meet these standards and comply with specified continuing education requirements to represent a child as a guardian ad litem. The goal of these standards is to foster vigorous, effective, and competent representation of children's interests and welfare. ⁵ Counsel may

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also be appointed for a parent or guardian pursuant to section 16.1-266(D) and should be selected from the list of attorneys who are qualified to serve as guardians ad litem. ⁶ However, if no attorney who is on the list is reasonably available or appropriate considering the circumstances of the parent or case, a judge in his or her discretion may appoint any discreet and competent attorney who is admitted to practice law in Virginia.

Guardians ad litem should be appointed by the courts from the list of qualified lawyers maintained and distributed by the Office of the Executive Secretary of the Supreme Court of Virginia. ⁷

2.203 Appointment.

A. Mandatory Appointment. Sections 8.01-9 and 16.1-266 of the Virginia Code require that a guardian ad litem or counsel be appointed to represent a child's interests when the child is involved in court proceedings. A guardian ad litem must be appointed by the juvenile and domestic relations district court to represent a child before the court hearing whenever:

		1.	The child is alleged to be abused or neglected; 8
2.	The child is the subject of an entrustment agreement; 9
3.	A petition has been filed seeking the termination of residual parental rights; 10
4.	The parents seek to be relieved of custody of the child; 11
5.	A petition has been filed seeking acceptance of consent to a parental placement adoption; 12

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		6.	The child is the subject of a foster care plan or a hearing to review the child's status in foster care; 13
7.	The child seeks to be emancipated; 14
8.	The parents seek to commit an objecting minor 14 years of age or older to a psychiatric facility; 15 or
9.	The child is subject to a petition for involuntary commitment. 16

In M.G. v. Albemarle County Department of Social Services, ¹⁷ the Court of Appeals ruled that "in a suit involving a termination of parental rights, a guardian ad litem for the child or children is an indispensable party to the appeal and, thus, qualifies as an 'opposing counsel' under Rule 5A:6(a), to whom the appellant has a duty to mail or deliver a copy of the notice of appeal."

B. Discretionary Appointment. Section 16.1-266 grants the juvenile court broad discretion to appoint a guardian ad litem in all cases in which the interests of the child require one. However, the appointment of a guardian ad litem in custody cases where both contesting parties are represented by counsel is expressly limited to situations in which the interests "of the child or children are not otherwise adequately represented." ¹⁸ The juvenile court may appoint a guardian ad litem in proceedings pursuant to a petition filed by a juvenile seeking judicial authorization for a physician to perform an abortion. ¹⁹ It is not necessary to appoint a guardian ad litem in addition to counsel for a juvenile defendant in a transfer proceeding. ²⁰

The equitable power of the circuit court to appoint a guardian ad litem for a child in a custody case incident to divorce proceedings was set

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forth in the 1993 case of Verrocchio v. Verrocchio. ²¹ In addition, the presence at trial of a guardian ad litem for a child victim in a criminal prosecution for sexual abuse was noted by the Virginia Supreme Court in Church v. Commonwealth. ²² A guardian ad litem who is participating in a custody case is a necessary party, and failure to serve a copy of the opening brief on the guardian ad litem is fatal to an appeal. ²³

The discretionary power of the juvenile court to appoint guardians ad litem extends not only to deciding whether to appoint a guardian ad litem but also to determining who may represent the best interests of the child. In Oxenham v. J.S.M., ²⁴ the Virginia Supreme Court upheld the jurisdictional authority of a juvenile and domestic relations district court judge to appoint separate, independent attorneys as counsel and as guardian ad litem for a 10-year-old boy charged with delinquency by his mother, over the objections of the mother and father, who wanted their respective divorce lawyers to represent the son.

C. Timing and Duration of Appointment. The guardian ad litem must be appointed before the court hearing of any of the cases designated in section 16.1-266. Section 16.1-268 states that an attorney appointed as a guardian ad litem "shall represent the child . . . at any such hearing and at all other stages of the proceeding unless relieved or replaced in the manner provided by law." That undoubtedly includes any appellate proceedings. ²⁵

To reinforce the Standards to Govern the Performance of Guardians Ad Litem for Children promulgated in 2003, ²⁶ amended appellate rules were adopted to facilitate guardian ad litem participation in the appellate process. In 2004, the Rules of the Supreme Court of Virginia were amended to provide more explicitly for the participation of the guardian ad litem in the appellate process in the following ways:

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1.	Rule 5A:1 provides that the term "counsel for appellee" includes a guardian ad litem, unless the guardian ad litem is the appellant;
2.	Rule 5A:19 provides that the appellant may file a reply brief in the clerk's office of the Court of Appeals within 14 days after the appellee's or guardian ad litem's brief is filed, and if a guardian ad litem joins with either the appellant or appellee, the guardian ad litem must notify the clerk's office, in writing, of which side it joins and thereafter may rely on the brief of that party and is entitled to oral argument under Rule 5A:26;
3.	Rule 5A:24 provides that if the guardian ad litem's brief is separate from that of the appellant and appellee, the cover of the guardian ad litem's brief must be brown; and
4.	Rule 5A:28 provides that if a guardian ad litem joins with either appellant or appellee, he or she must share the time for oral argument with the party, but if a guardian ad litem wants additional time to argue, a request to that effect must be stated in the brief, subject to approval of the court.

In Watkins v. Fairfax County Department of Family Services, ²⁷ the Court of Appeals reaffirmed its prior holdings that the guardian ad litem is an indispensable party in an appeal of a circuit court judgment terminating a mother's parental rights, and thus, the failure to name the guardian ad litem in the notice of appeal or accompanying certificate of service was fatal to the perfection of the mother's appeal.

2.204 Fees and Expenses.

A. Fees. Section 16.1-267 of the Virginia Code sets forth the nature and amount of fees to be paid to a guardian ad litem appointed pursuant to section 16.1-266. Under Supreme Court of Virginia guidelines, guardians ad litem are compensated $75 per hour for in-court service and $55 per hour for out-of-court service. There is no limitation on these payments for hours

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that are documented and approved by the judge who appointed the guardian ad litem. ²⁸ A guardian ad litem is not limited to the fee amounts set forth in section 16.1-267 but "should be provided reasonable compensation and actual expenses, and if the estate of the minor child is inadequate for the purpose of paying such compensation or expenses, such compensation may be taxed as costs in the proceeding." ²⁹ The child's parent, or other party with a legitimate interest who filed a petition, must reimburse the commonwealth the costs of the guardian ad litem's services as ordered by the appointing court. ³⁰ The form for documenting hours of service for payment as a guardian ad litem is the same as that used for court-appointed counsel. ³¹

B. Expenses. Section 19.2-163 provides for the payment of "such reasonable expenses incurred . . . as [the court] deems appropriate under the circumstances of the case." An opinion of the Attorney General allows the payment of reasonable expenses for an appointed attorney, albeit in a criminal case. ³²

C. Compensation of Experts. Compensation of expert witnesses has been authorized by an Attorney General's Opinion in a child abuse case in the juvenile and domestic relations district court ³³ and seems to be permitted in an involuntary commitment proceeding where counsel is obligated to obtain independent experts when possible. ³⁴

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D. Compensation from Adverse Attorney. Virginia Legal Ethics Opinion No. 385 states that it is ethically impermissible for an attorney appointed to represent another as a guardian ad litem to receive any form of compensation from an attorney...