Guardians Ad Litem and Children's Attorneys in Arizona: A Qualitative Examination of the Roles

• DOI: http://doi.org/10.1111/jfcj.12093
• Author: Connie J. Beck,Rebecca M. Stahl,Jennifer E. Duchschere
• Published date: 01 June 2017
• Date: 01 June 2017

Guardians Ad Litem and Children’s Attorneys

in Arizona: A Qualitative Examination

of the Roles

By Jennifer E. Duchschere, Connie J. Beck, and Rebecca M. Stahl

ABSTRACT

An ongoing debate exists with little research support concerning the differences

in the roles of guardians ad litem (GAL) and children’s attorneys (CA) in dependency

cases. Through qualitative interviews, this study examined GALs’ and CAs’ percep-

tions and execution of roles. Both executed their roles similarly and agreed the best

interests of the child and the child’s wishes are important. Shared goals included

child safety, ensuring the child’s voice is heard, keeping the family together, and

minimizing the distress to the child. Challenges to executing their roles were often

systemic, including overwhelmed courts and lack of community resources to serve

clients’ needs.

Key words: representing children, juvenile, child welfare, dependency, children’s attorneys,

guardians ad litem, best interests, children’s wishes, qualitative research, client-directed.

Jennifer E. Duchschere,M.A., is a Clinical Psychology graduate student at the University of

Arizona. Her major research interests include the impact of adverse and traumatic experiences on children

and adolescents. Specifically, she is interested in exploring the impact of these events on youth involve-

ment in the legal system, including delinquency and dependency proceedings. Her work aims to mini-

mize youth distress resulting from and/or exacerbated by legal processes through accessible, evidence-

based interventions and effective policy change. Email: duchschere@email.arizona.edu

Connie J. Beck,Ph.D., Associate Professor, University of Arizona, Department of Psychology. Her

research interests focus broadly on investigating aspects of the legal system to determine how the legal sys-

tem can be adjusted to minimize psychological distress for those who use it. Email: beck@email.

arizona.edu

Rebecca M. Stahl,J.D., LL.M., is a lawyer for children currently working at the Children’s Law

Center of California in Los Angeles County representing children in child welfare cases. She has her Master’s

of Law degree from the University of Otago in Dunedin, New Zealand where she studied the role of lawyers

for children in family court cases. Rebecca has presented at a variety of international conferences focused on

children’s rights and family law on topics ranging from yoga and stress management to the role of lawyers

for children in both family and juvenile court. Email: rmstahl@gmail.com

Juvenile and Family Court Journal 68, No. 2

©2017 National Council of Juvenile and Family Court Judges

33

INTRODUCTION

The Child Abuse Prevention and Treatment Act of 1974 (42 USC §5106a (b)(2)

(A)) requires states to appoint guardians ad litem (GALs) for children in child welfare (de-

pendency)

1

cases. The two major differences between these roles are that GALs have no

duty of confidentiality and must primarily advocate for the child’s “best interest”,

whereas the CAs have a duty of confidentiality but must advocate primarily for the

child’s wishes.

In this paper, we present a qualitative study examining how GALs and CAs per-

ceive and execute these roles,

2

with the intent to inform the debate on the differences

between these roles. The debate between which is the better role lays out pros and cons

of both types of representation. The pendulum in recent years has swung toward repre-

sentation as children’s attorneys (Atwood, 2011). First, proponents of children’s attor-

neys focus on children’s rights to be heard, to have a voice in the proceedings, even if not

a choice. The other argument for CAs is the ethical issues that bind all lawyers, namely

that the role of a lawyer is to be directed by the client and not to make decisions for the

client (Atwood, 2011). The arguments against this form of representation include that it

does not work for younger children who are not verbal or too young to understand the

proceedings, and some argue it places too much responsibility on the child for major life

decisions (Duquette, 2006; Emery 2003). The arguments for the GAL, or best interest,

role is that adults are better able to make decisions for children, and it takes the responsi-

bility for major life decisions off the children. Finally, the arguments against the GAL

role are that lawyers place their own bias into decisions without listening to the children,

and children’s voice is, therefore, lost in the process (Emery 2003; Atwood, 2005;

Duquette 2006; Atwood, 2008; Boumail, Freitas, & Freitas, 2011; Duquette & Darwall,

2012).

We chose Arizona for this study because Arizona courts appoint either a GAL or a

children’s attorney (CA) depending on the jurisdiction (Children’s Action Alliance,

2008; 17B A.R.S. Juv.Ct.Rules of Proc., Rule 40.1), and Arizona’s Juvenile Court Rule

40.1 outlines the duties and responsibilities for each. These duties include meeting with

clients, caregivers, and other interested persons; being familiar with substantive law; pro-

viding input to meetings affecting the child clients; presenting evidence and making

arguments; and informing the child client about the nature of the proceedings. Because

Arizona uses both representation types with similar duties, it is a microcosm of the

1

In Arizona, the dependency process begins immediately upon a child being removed from his or

her home. Within 72 hours of removal, the child welfare agency holds a meeting with the involved parents

to discuss safety, placement, services, and other concerns. This meeting also determines whether a depen-

dency petition is filed with the Juvenile Court. If filed, separate attorneys are appointed to the parents and

child and the first court hearing is set five to seven days later. The remainder of the process involves multiple

hearings in which parents may either deny or accept allegations set forth by the child welfare agency, the

state attempts to prove that the child is in need of the State’s care, and a specific plan is created with the goal

of family reunification. If parents are unsuccessful in this, the dependency process may end with severance of

their parental rights. (Office of the Public Advocate, 2016).

2

In this paper, we will refer to them either in their respective roles or as representatives to not con-

fuse the word lawyer or attorney with CAs.

34 | JUVENILE AND FAMILY COURT JOURNAL