Vol. 31, No. 5, #2. Ethically Speaking - Juvenile Court, Part II - Some of the Legal Knowledge Reasonably Necessary to be a Competent Guardian ad Litem.

• Author: Author: John M. Burman

Wyoming Bar Journal

2008.

Vol. 31, No. 5, #2.

Ethically Speaking - Juvenile Court, Part II - Some of the Legal Knowledge Reasonably Necessary to be a Competent Guardian ad Litem

Wyoming Bar Journal Issue: October, 2008 Author: John M. Burman Ethically Speaking - Juvenile Court, Part II - Some of the Legal Knowledge Reasonably Necessary to be a Competent Guardian ad Litem

The last column which appeared in "Ethically Speaking" was entitled "Juvenile Court, Part I: The Rules of Procedure for Juvenile Courts, and the Transfer of the GAL Program to the Public Defender's Office." The column ended with the statement that the Public Defender's Guardian Ad Litem Program "rules . . . will be the subject of future columns." Those rules are now in the comment period. In fact, they have just been put out for a second comment period because of changes made in response to public comment and public hearing, . . ." Since those rules are not final yet, and since there is a lot more "legal knowledge" that a guardian ad litem ("GAL") must have to perform his or her task competently, this article is devoted to Wyoming Supreme Court opinions. The rules, and other authorities, will be addressed later. Wyoming Supreme Court Opinions

Most of the Wyoming Supreme Court's opinions which discuss a GAL's role, arose in some context other than juvenile court, such as in cases involving domestic relations, termination of parental rights ("TPR"), or guardianships. Nevertheless, those opinions are very relevant to a GAL in juvenile court as there is no significant difference between GALs in juvenile court and GALs in other contexts. Ethically, a GAL, whatever the context, "represents the best interests of the individual for whom the lawyer has been appointed to act, and the lawyer's obligations pursuant to these rules shift accordingly."

Perhaps most importantly for a GAL, the Supreme Court has made it clear that parents have a constitutionally protected liberty interest in the care, custody and control of their children (the Wyoming Supreme Court's holdings in this regard are consistent with the holdings of the United States Supreme Court.) So long as a parent is fit, the best interests of his or her child is to be with that parent, and the court should not consider the best interests of the child.

While the following list is not exhaustive, GALs should be familiar with these cases, at a minimum. Although they arose in a variety of contexts, the opinions address issues relevant to GALs in juvenile or TPR cases, and every GAL should be familiar with them.

One of the first Wyoming cases to address GALs was Moore v. Moore, a 1991 case involving the custody of children in a divorce case. The Court addressed two issues important to GALs: (1) whether a GAL may have ex parte contact with the court; and (2) what role a GAL should play at trial. With respect to the first issue, the Court held that "'[g]uardians ad litem may not have ex parte communications with the judge.'"

Second, the Moore court held that "[a] guardian ad litem is the attorney for the minor whom he is appointed to serve. . . . . He participates in the proceedings as an advocate." A GAL, in other words, is to be a lawyer for the child, and, as such, he or she may give an opening statement, cross-examine witnesses called by other parties, call witnesses and present a case, and give a closing argument. In pretrial proceedings, the GAL may engage in discovery, motion practice, and anything else that needs to be done in the best interests of the child or children.

A couple of years later, the Court discussed the reason for appointing a GAL in a juvenile case, as well as the proper remedy when a juvenile court does not hear a juvenile case within the statutorily mandated period.

First, the Court addressed the reason for appointing a GAL in a juvenile case: "In appointing a guardian ad litem," said the Court, "the juvenile court has determined that either the child has no parent, guardian or custodian appearing in its behalf or that the interests of the parent, guardian or custodian are adverse to the best interests of the child. . . . [Once appointed,] the guardian ad litem must act with reasonable diligence in the role of an advocate for the child . . . and participate as necessary in all phases of the process, including subsequent appeals, to insure the rights of the client are protected."

The Court also considered the juvenile court's failure to hold an adjudicatory hearing within the time prescribed by statute. "[t]he failure to set an adjudicatory hearing within sixty days of the denial of . . . a petition invoking juvenile court jurisdiction does not result in a loss of that court's subject matter jurisdiction. . . ." Instead of losing jurisdiction, with an attendant dismissal of the petition, "the proper remedy...