Vol. 31, No. 6, 5. Ethically Speaking - Juvenile Court, Part III - More of the Legal Knowledge Reasonably Necessary to be a Competent Guardian ad Litem.

AuthorAuthor: John M. Burman

Wyoming Bar Journal

2008.

Vol. 31, No. 6, 5.

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

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

The last "Ethically Speaking" column was entitled Juvenile Court, Part II: Some of The Legal Knowledge Reasonably Necessary to be a Competent Guardian ad Litem. The column ended with the statement that "there is a lot more 'legal knowledge' that a guardian ad litem ("GAL") must have to perform his or her task competently . . . [those] other authorities, will be addressed later." Among the authorities with which a GAL must be familiar are the statutes that govern juvenile courts. In Wyoming, children may be involved in any one of three different types of actions in juvenile court: (1) a child protection action; (2) a CHINS ("Child in Need of Supervision") case; or (3) a juvenile delinquency proceeding. Each type of proceeding is governed by different statutes. And while there are similarities among the statutes, there are important differences. Those differences have a significant impact on a GAL's responsibilities.

Child Protection Actions

When a child is abused or neglected, the State may intervene to protect the child. Such intervention is referred to, not surprisingly, as a child protection action. GALs appointed in such actions must be familiar with the statutes under which the actions occur.

One of the difficulties with Wyoming's child protection actions is that two statutes apply to abused or neglected children: The Child Protective Services provisions, and the Child Protection Act. Why there are two statutes, which are codified in different articles of Chapter 3 of Title 14, is unclear. What is clear is that there is at least one provision in the former, immunity for certain persons, which does not appear in the latter, and it is unclear whether the immunity provision applies to both statutes and so to all participants, including GALs, in child protection actions.

The Two Applicable Statutes

The Child Protective Services Provisions

Chapter 2 of Article 3 of Title 14 is entitled "Child Protective Services." That chapter contains provisions regarding its purpose, definitions, the duties of DFS and local child protective agencies, the child abuse or neglect reporting requirement, taking children into protective custody, immunity, appointment "of counsel for child and other parties," child protection teams, the central registry, and confidentiality of certain records. Some of those provisions are discussed in more detail below.

The purposes of the Child Protective Services provisions (14-3-201 through 216) include: "to protect the best interest of the child . . . to protect children from abuse or neglect which jeopardize their health or welfare . . . to preserve family life whenever possible and to provide permanency for the child . . . ." In seeking to attain those purposes, "[t]he child's health, safety and welfare shall be of paramount concern . . ."

Three terms from the purposes provision are in bold, as they should be the foci of GALs: "best interest;" "preserve family life;" and "permanency." The first, "best interest," is the objective of a GAL. The second is a mandate to try and reunify the family, if possible, as it is generally in a child's "best interest" to be with his or her family. Whether reunification is possible or not, that needs to be done quickly, as children need "permanency," either with their families or with someone else. Avoiding "foster care drift," and achieving permanence, should be one of a GAL's primary goals, from the outset of a case.

"Abuse" is defined broadly. It includes: "inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child . . . excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof by reason of intentional or unintentional neglect . . ." All four terms in bold are defined.

"Physical injury" is:

[A]ny harm to a child including . . . disfigurement, impairment of any bodily organ, skin bruising if greater in magnitude than minor bruising associated with reasonable corporal punishment, bleeding, burns, fracture of any bone, subdural hematoma or substantial malnutrition;

"Mental injury" is:

[A]n injury to the psychological capacity or emotional stability of a child as evidenced by an observable or substantial impairment in his ability to function within a normal range of performance and behavior with due regard to his culture;

The definition of abuse includes "imminent danger" of physical or mental injury. That term, "imminent danger," means "threatened harm and means a statement, overt act, condition or status which represents an immediate and substantial risk of sexual abuse or physical or mental injury."

Finally, including "intentional or unintentional neglect" in the definition of abuse greatly broadens the category of abusive behavior, as the definition of "neglect" is, itself, very broad.

"Neglect" means: "a failure or refusal by those responsible for the child's welfare to provide adequate care, maintenance, supervision, education or medical, surgical or any other care necessary for the child's well being. . . ."

Wyoming's child abuse or neglect reporting statute appears in the Child Protective Services provisions. It requires "[a]ny person who knows or has reasonable cause to believe or suspect that a child has been abused or neglected . . . [to] . . . immediately report it to the child protective agency or local law enforcement agency . . ."

After a report is made, the local DFS office has the responsibility to investigate "all reports of known or suspected child abuse or neglect." That investigation is to be "initiated[d]" within 24 hours "after notification of a suspected case of child abuse or neglect" and is do be conducted in accordance with DFS child protection rules. The objective of the investigation is to either "substantiate" or "unsubstantiate" the report.

"Unsubstantiated report" and "substantiated report" are defined. The former means that after an investigation, the report of abuse or neglect "is not supported by a preponderance of the evidence." The latter, by contrast, means that after an investigation, the report "is supported by a preponderance of the evidence."

If the child is in "imminent danger" he or she may be taken into temporary protective custody pursuant to the Child Protection Act, which is discussed below. If that is done, the local DFS office is to be notified and the child is to be placed in "the most appropriate and least restrictive setting necessary to meet the child's needs." As "temporary protective custody" cannot last longer than 48 hours, excluding weekends and holidays, without a court order, a GAL is likely to get involved at this stage; between the time the child is taken into temporary protective custody and the time of the "shelter care" hearing to determine if the child should remain out of the home.

The most troublesome part of the Child Protective Services provision is the immunity accorded by section 209. "Any person . . . or...

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