Ethical Issues for Guardians Ad Litem Representing Children in Dependency and Neglect Cases

• Publication year: 2002
• Pages: 43
• Citation: Vol. 31 No. 10 Pg. 43

31 Colo.Law. 43 Colorado Lawyer 2002.

2002, October, Pg. 43. Ethical Issues for Guardians ad Litem Representing Children in Dependency and Neglect Cases

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43

Vol. 31, No. 10, Pg. 43

The Colorado Lawyer
October 2002
Vol. 31, No. 10 [Page 43]

Children and the Law

Ethical Issues for Guardians ad Litem Representing Children in Dependency and Neglect Cases
by Jennifer Renne

Jennifer Renne is an Assistant Director of Child Welfare for the American Bar Association's Center on Children and the Law in Washington, D.C. She conducts trainings for state court systems on issues of child abuse and neglect, and researches and writes on issues pertaining to child welfare She is an adjunct professor at Georgetown University Law Center, teaching Professional Responsibility to students interested in pursuing public interest law careers. The author gratefully acknowledges the assistance in the preparation of this article of Ray Micklewright, with Wolf & Slatkin P.C. and a member and former chair of the CBA Ethics Committee, and Tatiana Taylor, a staff attorney with the Rocky Mountain Children's Law Center

Assume you are appointed as the guardian ad litem ("GAL") to represent three children: Jason (age 15), David (age 7), and Angela (10 months). The allegations are that mom is abusing drugs, and has left David and Angela home alone on several occasions. Sometimes Jason is home, but more often than not he is out with friends. Jason has not really gotten into a lot of trouble, but he has begun skipping school frequently, and his grades have recently dropped

During the course of your interviews with the children, Jason and David consistently tell you they would like to stay with their mother. Further, Jason tells you that he has seen his mother use drugs, but he asks you not to tell anyone because he knows if this information comes out, he might be sent to a foster home.

The above hypothetical raises several ethical issues that are representative of those that routinely confront the GAL

appointed in dependency and neglect ("D&N") proceedings. Because the GAL's role is different from that in the traditional attorney/client relationship, the GAL often is uncertain about how to handle certain ethical situations under the Colorado Rules of Professional Conduct ("Colo.RPC" or "Colorado Rules"). This article addresses the role of the GAL in D&N proceedings1 and suggests how a GAL can analyze and possibly resolve some common ethical problems so as to represent the child's best interests while acting consistently with his or her ethical responsibilities.2

Role of the GAL in
D&N Proceedings

In 1996, the American Bar Association ("ABA") passed Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases ("ABA Standards").3 These ABA Standards advocate a traditional attorney/client approach to the representation of children where the attorney represents the child's "expressed wishes." However, the drafters of the ABA Standards recognized that in some jurisdictions, a GAL is appointed to advocate for the "best interests" of the child as opposed to the "expressed wishes" of the child; therefore, the ABA Standards define a "GAL" as an "officer of the court appointed to protect the child's best interests without being bound by the child's expressed preferences."4

In Colorado, the court must appoint a GAL for children in all D&N cases.5 When appointed by a court in the D&N proceedings, the GAL is statutorily charged with the affirmative duty of representing the child's best interests. To fulfill that duty, the GAL is entitled by statute to receive all relevant reports and to be advised of all significant developments in the case.6 The GAL must investigate matters as he or she deems necessary to ascertain the facts, and should talk with or observe the child-client. The GAL also should examine and cross-examine witnesses in both the adjudicatory and dispositional hearings, introduce and examine the GAL's own witnesses, make recommendations to the court concerning the child's welfare, appeal matters to the court of appeals or the supreme court, and participate further in the proceedings to the degree necessary to adequately represent the child.7

The GAL may "make recommendations to the court concerning the child's welfare. . . ."8 This may mean that the GAL will ensure that reasonable efforts are being made to prevent unnecessary placement of the child out of the home and to facilitate reunification of the child with the child's family. If reunification is not possible, the GAL should attempt to find another safe and permanent living arrangement for the child.9 In exercising those responsibilities, the child's health and safety - that is, the child's "best interests" - must be the paramount concerns.

The GAL's role as attorney for the child and the child's best interests can create a conflict for the GAL attempting to comply strictly with the ethics rules while carrying out his or her dual responsibilities to the client-child. In some jurisdictions, the separation of these roles has been established by statute or they have declared the role of a GAL a "hybrid," necessarily excusing strict adherence to some Rules of Professional Conduct.10 Colorado has done neither.

Recognizing that the costs incidental to the appointment of both an attorney and a GAL for every child in a D&N proceeding would be prohibitive and would usurp scarce family resources better directed to the children's needs outside the litigation process, some consideration should be given to GALs in Colorado who daily confront ethical issues that arise as a result of their dual role. The unique nature of the role of the GAL in Colorado necessitates a modified application of the Colorado Rules to allow GALs to resolve traditional ethical dilemmas and carry out their statutory responsibilities.

Legal Representative
Or Special Advocate

It should be noted at the outset that the role of the GAL in a D&N proceeding is different from the role of a Special Advocate or Legal Representative in a domestic relations matter. In domestic relations cases, the Colorado statute allows for, but does not require, the appointment of a Special Advocate or Legal Representative to represent the child's best interests to the court.11 A Legal Representative is the domestic court's version of a GAL.12 In other words, the purpose of these two roles essentially is the same - to present to the court what is in the best interests of the child.13 Consequently, both are subject to Chief Justice Directive ("CJD") 97-02.14 Special Advocates, however, are different from both GALs or Legal Representatives in key respects, including the fact that Special Advocates need not be attorneys.15

GAL Versus Traditional
Role of Attorney

The role of the GAL also differs from that of the traditional role of lawyer. The traditional role of an attorney is that of advisor, advocate, negotiator, and intermediary. The traditional counsel for a child is bound by the rules of ethics to "abide by a client's decisions concerning the objectives of representation. . . ."16 Thus, the role of traditional counsel in representing a child, in contrast to the role of GAL, prohibits counsel from independently determining and advocating the child's "best interests" if contrary to the preferences of the child.

On the other hand, CRS § 19-3-203(3), which addresses the appointment of counsel to represent children in D&N proceedings, distinguishes the role of GAL from the role of "counsel for the child," providing that "the guardian ad litem shall be charged in general with the representation of the child's interests" (emphasis added). The differences between a lawyer's role as GAL and the traditional role of "counsel for the child" are, at best, blurred. The ethical responsibilities of the GAL are immediately at odds. Consequently, the GAL often is confronted with ethical dilemmas that are not necessarily resolved by reference to the Colorado Rules, which do not take into consideration the unique nature of the GAL's role in the litigation.

Colorado Rules and
The GAL

The dual role of the GAL as attorney for the child and, in general, the child's best interests makes the application of some of the ethics rules to traditional ethics problems difficult, if not impossible. Some of these rules and the dilemmas they create for the GAL are discussed below.

Duty of Loyalty: Colo.RPC 1.2

By statute, the GAL is not necessarily bound by the child-client's expressed wishes, but by the child-client's best interests. If the GAL determines that the child's expressed preference is not in the best interests of the child, both the child's wishes and the basis for the GAL's disagreement should be presented to the court. That fundamental duty of the GAL conflicts with the traditional role of the attorney as advocate for the client and appears to violate the lawyer's fundamental responsibility under Colo.RPC 1.2. Rule 1.2 requires the lawyer to abide by a client's decisions regarding the objectives of the case. However, GALs are required by statute to present to the court what they think is in the child's best interests, as well as the reasoning and facts that support this conclusion, regardless of the child-client's expressed wishes.17

This conflict is further complicated because a GAL must consider the expressed wishes of the child as part of his or her assessment of the child's best interests. For example, the GAL may be representing a teenage client who does not want to go to a particular residential treatment center. Perhaps it is too far from friends and family or he or she has had friends who...