The Updated Role of the Guardian Ad Litem in Juvenile Delinquency Cases

• Publication year: 2002
• Pages: 79
• Citation: Vol. 31 No. 5 Pg. 79

31 Colo.Law. 79 Colorado Lawyer 2002.

2002, May, Pg. 79. The Updated Role of the Guardian ad Litem in Juvenile Delinquency Cases

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79

Vol. 31, No. 5, Pg. 79

The Colorado Lawyer
May 2002
Vol. 31, No. 5 [Page 79]

Specialty Law Columns
Criminal Law Newsletter
The Updated Role of the Guardian ad Litem in Juvenile Delinquency Cases
by Bradley M. Bittan, Jim Covino, David Furman, Joni Speirs

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense and administration of criminal cases in

Colorado state and federal courts.

Column Editor:

Patrick Furman, University of Colorado School of Law, Boulder?(303) 492-8126

About TheAuthors:

(Left to Right): Bradley M. Bittan, Denver, is a sole practitioner and chair of the CBA Juvenile Law Forum Committee?(303) 283-1791; Jim Covino, Denver, is a sole practitioner and a board member of the Office of the Child's Representative?(303) 757-5353; David Furman is a magistrate in the Denver Juvenile Court; and Joni Speirs, is a juvenile court attorney for the Denver Trial Office of the Colorado State Public Defender. The authors wish to extend special thanks to Marietta Heinmiller for her assistance in the preparation of this article.

With adequate knowledge of the laws pertaining to juveniles, the guardian ad litem ("GAL") can ensure that the family and juvenile justice system work effectively for the best interests of the juvenile. This article discusses the role of the GAL and some of the issues that may arise during representation of a juvenile involved in a delinquency case.

The legislative declaration of the purpose of the juvenile justice system is that the system should assist the juvenile in becoming a productive member of society.1 The role of the guardian ad litem ("GAL") in juvenile delinquency cases can be challenging. Although not a party in the delinquency action,2 the GAL must assume the critical role of speaking independently for the juvenile's best interests,3 without violating the juvenile's statutory and constitutional rights.4 The GAL must follow the guidelines set forth in the federal Department of Health and Human Services "Adoption 2000" Guidelines, Colorado Bar Association Guidelines for Guardians ad Litem, and Chief Justice Directive 97-02.5 This article discusses the role and appointment of the GAL, critical stages during which a GAL is utilized to provide legal advice and protection to the juvenile, and special circumstances in which a GAL may require unique understanding in order to represent a juvenile effectively.6

Role and Appointment
Of the GAL

The GAL is required to attend each hearing and conduct an independent investigation of the legal and social history of the juvenile. This investigation, at a minimum, must include meeting with and observing the juvenile at home or in placement; interviewing the juvenile and his or her parents; reviewing court files and relevant reports; and interviewing other people involved in the juvenile's life, such as human services caseworkers, school personnel, and probation officers.7 The GAL must possess a thorough understanding of both criminal and confidentiality laws that apply to delinquency proceedings.8 Additionally, every three years, the GAL must earn ten hours of continuing legal education credits or attend other courses relevant to an appointment that enhances the GAL's knowledge of the issues in representation.9

Typically, a GAL is appointed when a parent or legal guardian for the juvenile fails to appear at a hearing or when the alleged victim of an offense is a family member, such as a parent.10 The GAL should determine and advise the juvenile if there is any potential conflict of interest arising out of the appointment.11

Because the GAL is not the juvenile's defense counsel, care should be taken that the juvenile's constitutional rights and confidences are not inadvertently waived.12 For instance, in People v. S.M.D., the Colorado Supreme Court held that in a first-degree murder case, a juvenile's waiver of the Fifth Amendment constitutional right against self-incrimination was valid when such waiver was made with the consent of the juvenile's GAL.13

Critical Stages

The Colorado Children's Code authorizes the district attorney to file charges against a juvenile by a petition in delinquency.14 The GAL needs to make sure that the juvenile and family members understand each of the substantive and procedural rights contained in Rule 3 of the Colorado Rules of Juvenile Procedure ("C.R.J.P."). Moreover, the GAL should request service of all pleadings filed by attorneys in the case and obtain discovery from the district attorney's office.15 A written entry of appearance may be necessary before discovery requests will be fulfilled.

During any meeting with the juvenile, the GAL must be aware of the juvenile's constitutional right against self-incrimination. No Colorado case has determined that information communicated by a juvenile to a GAL in the course of a delinquency proceeding is protected as confidential attorney-client matter, pursuant to the Colorado Rules of Professional Conduct ("Colo.RPC") Rule 1.6.

Timelines

When a juvenile is arrested and placed in custody, a detention hearing must be held within forty-eight hours, excluding weekends and holidays.16 If the juvenile had a detention hearing, charges must be filed within seventy-two hours of the hearing.17 The preliminary hearing for juveniles in custody must be heard within thirty days of the filing of the motion.18

When setting a trial, if a juvenile is in custody and being held without a bond, a court trial must be held within sixty days from the court's issuance of the no-bond order.19 The court must set the trial within sixty days of the entry of the not-guilty plea for a juvenile who has been given bond (whether or not the bond is actually posted).20 If a juvenile is entitled to...