Ethically Speaking
| Jurisdiction | Wyoming,United States |
| Citation | Vol. 28 No. 4 Pg. 1 |
| Pages | 1 |
| Publication year | 2005 |
Vol. 28, No. 4 #1 (August 2005). ETHICALLY SPEAKING
August 2005/Vol. XXVIII, No. 4
By statute, juvenile courts are required to appoint guardians ad litem (GALs) to represent the best interests of many children involved in juvenile court, especially those in cases involving abuse or neglect (Child Protection Act),(fn1) and those in which a child is in need of supervision - a so-called CHINS case).(fn2) A child charged with a delinquent act(fn3) that could result in detention is generally entitled to an attorney to represent his or her interests,(fn4) as opposed to a GAL to represent the child's best interests. The attorney may also "be the guardian ad litem" for the child.(fn5) Even if not appointed as both attorney and GAL, the attorney in a delinquency case is directed to "consider among other things what is in the best interest of the child."(fn6)
A conflict of interest may arise between what an allegedly delinquent child wants and what is thought to be in his or her best interests. A child, for example, may want to avoid treatment for a substance abuse problem that may have led to the delinquent act, while a GAL may think treatment would be in the child's best interests. When that occurs, Wyoming's Juvenile Justice Act authorizes the appointment of a GAL, as well as an attorney for the child.(fn7)
Until the 2005 legislative session, payment for GALs in Child Protection and CHINS actions was the responsibility of the counties.(fn8) Even though payment for public defenders to represent children in delinquency actions is a combination of state (85%) and county funds,(fn9) payment for GALs in delinquency cases was a county responsibility.(fn10) As a result of having counties responsible for paying for GALs, payment rates varied widely. While GALs in a few counties received relatively decent compensation, GALs in many counties received little compensation and/or had an extremely high number of cases. That has now changed. Legislation passed during the 2005 Session contained an appropriation of state funds to greatly supplement county funds, as well as a requirement that attorneys who act as GALs receive training in representing children.
The Statute
Enrolled Act 237 ("the Act") appropriated funds and required the establishment of standards for GALs and training programs to enable GALs to meet those standards.(fn11) The Act appropriates $2.1 million dollars in state funds, to be matched by twenty-five percent county funds,(fn12) to "reimburse attorneys [for] providing legal representation as guardians ad litem in child protection cases . . . children in need of supervision cases . . . or termination of parental rights actions brought as a result of a child protection or children in need of supervision action."(fn13) The
expenditure of funds is subject to the establishment of performance standards and training requirements.(fn14) The responsibility for establishing the standards and requirements was delegated to the District Judges' Judicial Council ("the Council"), which was to make a recommendation to the Board of Judicial Policy and Administration ("the Board"). Responsibility for implementing and administering the program was given to the Supreme Court.
The juvenile courts in Wyoming are part of the district courts, so every district court judge is also a juvenile court judge.(fn15) District court judges are "free of administrative and fiscal control by the supreme court."(fn16) They are governed, instead, by "a judicial conference composed of all district judges . . .."(fn17) That conference was given the authority to recommend to the Board of Judicial Policy and Administration, "rules and regulations governing standards" for GALs and standards "for training."(fn18) While the Act delegated the authority to establish standards for GALs, the Act required that the standards address two issues.
First, the standards for GALs must "ensure that their [GALs] advice remains independent of private providers."(fn19) Second, the standards must require GALs to "consider cost impacts and savings to the State of Wyoming."(fn20) The former requirement is part of a GAL's ethical duty to act in a child's "best interests."(fn21) Similarly, while cost is an appropriate consideration, a GAL remains bound, both ethically(fn22) and legally,(fn23) to make a recommendation that is in the best interests of the child, regardless of the fiscal impact.
The Act requires the Council to make recommendations about standards and training to the Board, which has ultimate authority to promulgate those standards as rules.(fn24) That was done. The Council recommended that a new rule, Rule 106, be added to the Uniform Rules for District Courts. The Board accepted that recommendation, and the new Rule was adopted by order signed by Chief Justice Hill with an effective date of July 1, 2005.
The Act authorizes the Wyoming Supreme Court to administer the GAL program and to hire one full-time equivalent "to assist in the administration of the reimbursement program . . .."(fn25) Its responsibilities include "enter[ing] into agreements with the individual counties" that wish to receive state funds to assist in reimbursement of GALs.(fn26) No county may receive and pay state funds unless the county agrees to match the state funds; the state will pay seventy-five percent of GAL fees, provided the county pays the other twenty-five percent.(fn27) The Supreme Court is also to monitor the program and "shall report each year . . . to the joint judiciary interim committee [the] results of the program . . .."(fn28)
The Act and the new rule both became effective on July 1, 2005.(fn29)
Rule 106
Since juvenile courts are part of the district courts, the rule to implement the GAL program is part of the Uniform Rules for District Courts of the State of Wyoming. In particular, the standards and training requirements are contained in the new Rule 106 of the Uniform Rules.
Overview of the Rule
Rule 106 ("the Rule") is divided into eight subparts, each of which is discussed briefly below.
1. Applicability
The Rule applies to four types of proceedings:
(a) Child Protection cases under Wyo. Stat. 14-3-401 through 14-3-440;
(b) Child in Need of Supervision ("CHINS") cases under Wyo. Stat. 14-6-401 through 14-6-440.
(c) Termination of Parental Rights actions "brought as a result of child protection" or CHINS actions; and
(d) Juvenile Delinquency actions in which an attorney is appointed "to serve only as a guardian ad litem . . .."
2. Role of Attorney Guardian ad Litem
The Rule adopts the "hybrid" model, in which the attorney represents both "the child and . . . the child's 'best interests.'" Under this model, the attorney/GAL ultimately "advocates for a result which he/she believes (not necessarily what the child believes) is in the child's 'best interests.'"
This mandate is consistent with Rules 1.2, 1.4, and 1.14 of the Wyoming Rules of Professional Conduct, especially Rule 1.14(c), which says that "[a] lawyer appointed to act as a guardian ad litem . . . of an individual represents the best interests of that individual, and shall act in the individual's best interests even if doing so is contrary to the individual's wishes."
While the attorney/GAL has ultimate authority to decide what is in the child's best interests, the GAL must "consider the child's wishes," and if the GAL and the child disagree, "both the child's wishes and the basis for the attorney guardian ad litem' s disagreement must be presented to the court."
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