Guardians ad Litem: a solution without strength in helping protect dependent children.

• Author: Johnson-Weider, Michelle

Simply put, a Guardian Ad Litem is a court-certified adult who has completed a mandatory training course to become an advocate for a child's best interests. ... Some Guardians Ad Litem are lawyers, but most are not. To qualify, one need only be a Florida resident of good repute and have an abiding interest in protecting at-risk children ... Guardians Ad Litem, in a word, are more than a dependent child's advocate in court. Ideally these guardians become the child's friend, protector, mentor, trusted advisor. (1)

Since April 25, 2002, when Florida's Department of Children and Family Services (DCF) divulged the 15-month absence of a foster child supposedly under its supervision (2) the question of how to protect vulnerable children in Florida's dependency system has been at the forefront of state news and politics. On May 2, 2002, Governor Jeb Bush appointed a four-member blue ribbon panel to investigate the DCF scandal and make recommendations. In the panel's final report, released on May 28, 2002, the panel put as its highest priority that a guardian ad litem (GAL) be appointed for every child in state supervision, stating, "If there is any program that costs the least and benefits the most, this is it." (3) State lawmakers obviously concurred, having increased the budget for Florida's GAL program by $7.5 million. (4) The same day the report was released, Governor Bush signed Executive Order 02-159, establishing the Guardian Ad Litem Program Working Group to "develop a recommended plan of action for realizing the full potential of the guardian ad litem program." (5)

It appeared guardians were the answer to the DCF question, with one reporter even referring to guardians ad litem as "saviors." (6) The Guardian Ad Litem Program Working Group's final report reiterated the importance of the GAL as someone "[who] protects the child during the family crisis, court proceedings, and follows the child's progress after the court disposes of the case." (7) In the words of Governor Bush, guardians "not only represent these children in the courts, but also watch over them as they make the transition to a new home." (8)

What the panel members, politicians, and newspaper writers aren't aware of is that typically a GAL is discharged from a case once the court enters its final order; (9) the GAL is not permitted to have any contact with the child after that point; (10) and a GAL is never authorized to supervise visitation with a child" or to assume any physical responsibility for a child. (12)

Statutory Strength

In proceedings involving children, GALs have considerable powers under Florida law and numerous statutes provide for the use of guardians ad litem to assist the trier of fact in protecting children. The most detailed, however, is F.S. [section] 61.403, which establishes the "powers and authority" of the guardian ad litem, including the power to investigate allegations, interview anyone with information "concerning the welfare of the child," inspect pertinent records, request and obtain expert examinations, address the court, make written or oral recommendations to the court, participate in all proceedings involving the child, and submit written reports. The statute states a guardian ad litem "shall act as next friend of the child, investigator or evaluator, not as attorney or advocate but shall act in the child's best interests. A guardian ad litem shall have the powers, privileges, and responsibilities to the extent necessary to advance the best interests of the child."

The plain language of the statute appears to lend authority to the GAL, to give guardians a definite ability to act in the best interests of the child. Guardians stand uniquely positioned to see what harried DCF workers or client-focused parental attorneys often cannot: There is a child involved in this proceeding, and what is best for the parents or the system may not be best for the child. A guardian ad litem is positioned to ensure the child's needs are being met within the trauma of dependency or divorce proceedings. (13)

Numerous statutes call upon GALs in various proceedings from dependency to divorce to help protect children. If allowed to use the powers authorized by statute, a guardian ad litem can prove a significant participant in serving a child's best interest throughout the legal process. Exercising these powers is often limited in formal proceedings, such as at a final hearing on the termination of parental rights. (14)

By statute, a GAL is required to prepare a written report that includes recommendations to the court. GAL program guidelines denote the written report as the true culmination of all of the guardian's work on the case. The GAL report is statutorily mandated under F.S. [section] 61.403 and can be a valuable tool in understanding family dynamics as it chronicles the GAL's investigation and also usually includes a statement of the child's wishes--even if different from the guardian's recommendations. The report must be turned in to the GAL program office at least one week prior to hearing, and program staff review the report to make sure that it conforms to the program's guidelines and relevant law before providing copies to all parties 72 hours before the hearing, when it is filed with the court. (15)

The GAL also receives training and preparation for court, where the guardian is usually called to testify and give recommendations. In training, guardians are advised the court expects them to provide an "honest and sincere evaluation...