Evolving Standards/Best Interests Of The Child/Families in Missouri?

The following is a listing of current standards for Guardians Ad Litem in Missouri and revisions as made by the Missouri Supreme Court Committee in December of 2009. Highlights, in bold, are proposed changes. The committee will present the standard revisions to the Family Courts for review sometime in 2010. Standards will be enacted into law in 2011.

One would wonder how effective the standards are since they are clearly being directed toward more court control and less participation by volunteer agencies. Are BEST INTEREST OF THE CHILD STANDARDS being addressed by reducing the influence of entities who do not make their livings operating in family court? Is it serving the best interests of children and families to minimize parent’s roles in the contribution of evidence in cases involving children or by reducing the amount of training required to certify GALs?

STANDARDS with COMMENTS for GUARDIANS AD LITEM in MISSOURI JUVENILE and FAMILY COURT MATTERS

STANDARD 1.0 Appointment of Guardians ad litem

Only a lawyer an attorney licensed by the Supreme Court of Missouri and in good standing, when authorized by law, a court appointed special advocate volunteer sworn in as an officer of the court shall be appointed to act as a guardian ad litem for a child. The guardian ad litem shall protect the child’s best interest without being bound by the child’s expressed preferences. The Guardian ad litem shall be appointed not later than the first proceeding at which a guardian ad litem is required by law and shall remain involved continue to serve in the capacity until the matter in which the guardian in ad litem is appointed is concluded or as otherwise ordered by the court.

COMMENT: Courts may shall appoint either a lawyer an attorney to act as Guardian ad litem for a child in accordance with Missouri law in juvenile, domestic relations, and miscellaneous family court matters or a court appointed special advocate volunteer to serve as guardian ad litem in accordance with Missouri law in juvenile matters, family court matters, and domestic relations matters, as set forth in chapters 210, 211, 452, 453, 455, RSMo. Courts may appoint a law student certified under Rule 13, provided the student is supervised by a qualified Guardian ad Litem.

The Rules of Professional Conduct as set out in Missouri Supreme Court Rule 4 are applicable to attorneys appointed to act as Guardians ad Litem.

The Court may designate a court appointed special advocate volunteer to assist in the performance of the Guardian ad Litem duties for the Court. The court appointed special advocate volunteer shall be trained and supervised by a program in good standing by the National and Missouri CASA organizations. The court appointed special advocate volunteer shall be sworn in as an officer of the Court. A non-attorney court appointed special advocate volunteer shall not provide legal representation for the child. See Section 210.160.5 and .6, RSMo.

Missouri children deserve quality guardian ad litem representation, whether by a lawyer, or a volunteer. To ensure the best possible guardian ad litem services, there needs to be clarity and consistency in defining the role and responsibilities of the guardian ad litem. To perform his or her duties effectively, the guardian ad litem requires knowledge of the role, understanding of the court’s expectations, and knowledge of the criteria used to judge his or her performance.

STANDARD 2.0 Independent Judgment of Guardian ad litem Caseloads

Courts shall control the size of the Guardian ad Litem caseloads, so that they do not have so many cases that they are unable to meet these Standards.

A Guardian ad Litem had a duty to notify the Court if the caseload reaches a level bearing upon their ability to meet the standards or the Rules of Professional Conduct.

COMMENT: The appointing Court is responsible to make certain that each attorney being appointed Guardian ad Litem is able to meet their obligations to the child. Those obligations are not only to these standards but also their ethical and professional standards.

In making Guardian ad Litem appointments each Court will be familiar with its jurisdiction, being mindful of the amount of time that is necessary to perform the Guardian ad Litem’s duties under there standards. Additionally, the Couirt should take into account if a CASA volunteer is available to assist in the performance of the Guardian ad Litem duties in the Court.

STANDARD 3.0 Faithful Performance of Duties Independent Judgment of Guardian ad Litem

A guardian ad litem, whether a lawyer or a volunteer, shall be guided by the best interests of the child and shall exercise independent judgment on behalf of the child in all matters.

COMMENT: The Guardian ad Litem must recommend only what is in the best interests of the child on each issue, and must maintain an objectivity that preserves a clear focus on the child’s best interest. Although the parties are interested in the child’s well-being, they are not necessarily focused on the best interests of the child. The guardian ad litem therefore, (1) must recommend only what is in the best interests of the child on each issue, and (2) must maintain an objectivity that preserves a clear focus on the child’s best interests.

The roles of a guardian ad litem and a lawyer for the child are different and must be clearly distinguished. A lawyer guardian ad litem is not the lawyer for the child and, therefore, advocates the best interests of the child rather than merely representing the child’s preferences.

However, the child shall be deemed a “client” of the Guardian ad Litem for the sole application of Missouri Supreme Court Rule 4-1.12.

STANDARD 4.0 Volunteer Advocates

Omitted based upon previous discussion

STANDARD 4.0 General Duties and Responsibilities

The court shall assure that the guardian ad litem maintains independent representation of the best interests of the child. The court shall require the guardian ad litem to perform the guardian ad litem duties faithfully and, upon failure to do so, shall discharge the guardian ad litem and appoint another.

COMMENT: The Guardian ad Litem shall not merely to provide factual information to the Court but also shall zealously advocate a position in the best interest of the child.

The Guardian ad Litem shall be prepared to participate fully in any proceedings and not merely defer to the other parties. The Guardian ad Litem may examine, cross-examine, subpoena witnesses and offer testimony.

Prior to the commencement of a hearing, the Guardian ad Litem shall conduct all necessary interviews with person having contact with or knowledge of the child in order to ascertain the child’s wishes, feelings, attachments and attitudes. If approproate, the Guardian ad Litem shall conduct interviews with the child.

In conducting said interviews, the Guardian ad Litem shall not communicate with a person the Guardian ad Litem knows to be represented by another lawyer in the matter, unless the Guardian ad litem has the consent of the other lawher or is authorized to do so by law or by court order. See Missouri Supreme Court Rule 4-2.2.

Consistent with the best interest of the child, the Guardian ad Litem shall seek approproate services, by court order if necessary, to access entitlements, to protect the child’s best interests, and to implement the service plan.

The Guardian ad Litem shall file petetions, motion, responses or objections as necessary to represent the best interests of the child.

The Guardian ad Litem shall maintain a file consistent with the provisions of Missouri Supreme Court Rule 4-1.15(j). However, the child shall not be deemed the “client” for purposes of the application of this Rule. Rather, the Court shall be deemed the client and the Court shall consider any request for early destruction of the file or any other request concerning the handling or disposition of the file. The Guardian ad Litem shall not provide the file to anyone, including the child, without the consent of the court.

The guardian ad litem should relate to the child according to the child’s stage of development and understand the child’s sense of time in relation to his or her the child’s age. The guardian ad litem should conduct regular face-to-face meetings with the child, to the extent appropriate which will allows the guardian ad litem to observe the child’s physical, mental, social, educational and familial well-being and to form opinions concerning the child’s best interest. underlying cause of any developmental disturbances the child may exhibit. The guardian ad litem shall not diagnose or work therapeutically with the child, but regular, face-to-face contact will ensure informed observations when conferring with other specialists.

STANDARD 4 5.0 Volunteer Advocates Access Between Guardain ad Litem and Child

If the court appoints a court appointed special advocate volunteer, the services of a lawyer shall be obtained by the volunteer program supporting the volunteer when the volunteer has need for legal advice and assistance.

COMMENT: Volunteers, trained and supervised by court appointed special advocate programs and sworn in as officers of the court, may be appointed to serve as guardians ad litem in certain designated cases. When a volunteer serves as a guardian ad litem a lawyer must be available to represent and, where appropriate, advise the volunteer.

The Guardian ad Litem and the child shall have access to each other at reasonable times and places and this access shall not be restricted or limited by any agency or person without good cause. The Guardian ad Litem has the obligation to ascertain the location of child and to initiate communication with contact information for the Guardian ad Litem, and the Guardian ad Litem shall be provided with timely information by the legal custodian regarding the current contact information for the child and the current location of the child and the Guardian ad Litem shall be promptly notified of any change in placement of the child.

COMMENT: Establishing and maintaining a relationship with the child is the foundation of effective Guardian ad Litem and the child is an important part of promoting the relationship. It is essential that the child is readily accessible to the Guardian ad Litem to fulfill his or her duties. It is equally important the Guardian ad Litem be easily accessible to the child. The child should be provided with the name, telephone number and address of the Guardian ad Litem immediately upon the appointment of the Guardian ad Litem and the opportunity, at reasonable times, to initiate contact with the Guardian ad Litem. The Guardian ad Litem should be provided with placement information about the child immediately upon appointment and should be promptly advised of any change in placement of the child. The child should be accessible to the Guardian ad Litem, at reasonable times, by telephone and in person, including access to the child in the current placement location.

STANDARD 5 6.0 Guardian ad litem Access to Child Guardian ad Litem Access to Reports and Records

Unless otherwise provided by law, the guardian ad litem shall be provided, upon request, with all reports relevant to the case made to or by any agency or any person and shall have access to all relevant records of such agencies or persons relating to the child or the child’s family members or placements of the child.

The Guardian ad Litem shall be entitled to all reports relevant to the case. The agency or parties have the duty to provide the reports to the Guardian ad Litem at least five days before all hearings and the Guardian ad Litem shall have access to all relevant records of such agencies or person relating to the child, the placement of the child, or the child’s family members.

COMMENT: Except as otherwise provided by law, The guardian ad litem must have complete access to all information related to the child and the child’s situation. See 210.160.2, RSMo.

A key aspect of representing a child is to obtain and review all documents to be submitted to the Court as well as relevant agency case files, educational records, medical records, mental records, mental health records and law enforcement reports. The information contained in such records may provide a more complete context for the current problems experienced by the child and family, may suggest additional professional and lay witnesses that can provide testimony necessary to a full hearing of the issues before the court, and may revel alternate potential placement resources.

It is essential that the Guardian ad Litem personally review the available information rather than relying upon description, summaries or characterizations of the evidence provided by others.

The guardian ad litem shall not be unduly restricted in access to the child by any agency or person. The guardian ad litem should meet with the child in the child’s placement as often as necessary to determine that the child is safe and to ascertain and represent the child’s best interests.

COMMENT: Every child should have a guardian ad litem who is objective and independent and aware of and knowledgeable about the child’s particular situation.

STANDARD 6 7.0 Guardian ad litem Access to Reports and Records Confidentiality and Privilege

A guardian ad litem shall observe uphold all statutes, rules and regulations concerning relating to the receipt of confidentiality and or privileged informnation received during the course of represention of the child.

A guardian ad litem shall may not redisclose any confidential or priviledged information without valid court order or as required by law except as permitted by S.Ct. Rule 4-1.6.or participate in the disclosure of information relating to an appointed case to any person who is not a party to the case, except as necessary to perform the guardian ad litem duties or as may be specifically provided by law.

COMMENT: During the cours of fulfilling the duties and oblications of serving as the Guardian ad Litem for a child the guardian will have access and will receive confidential and privileged information. This informnation will apply not only to the child but may pertain to a parent or other guardian for child or other involved in the case.This informmantion may include but will not be limited to Chilrren’s Division reports, treatment records; medical, psychological, substance abuse treatment, etc: ecducational records and the like.

The Guardian ad Litem has a duty to maintain confidentiality of all these different kinds of information received. Discussion among the parties about the confidential and aor priveileged information is allowed. However it is generally not permissible to redisclose any of the is information to any non party to the case.

Any additional concern that the Guardian ad Litem should be aware of is protecting the release of confidential information about the child during the court process. Most court hearings are open. If testimony or information about the child that is confidential or privileged is going to occur the Guardian ad Litem must ascertain that any persons hearing this information have a right to do so. If not the Guardian ad litem must notify the court to prevent the information being redisclosed.

The Guardian ad Litem shall familiarize themselves with RSMO 210.140 and may want to review the Federal confidentiality Regulation 42 CFR2.

The guardian ad litem, whether a lawyer or a volunteer, shall comply with all appropriate codes of ethics and conduct regarding confidentiality.

STANDARD 8.0 Progress of the Case Through The Court Process

The guardian ad litem will review the progress of a child’s case through the court process, and advocate for timely hearings, timely enforcement of necessary services and timely enforcement of court orders.

COMMENT: The harmful effects of prolonged foster care and lack of permanency planning for children are serious and well documented. Foster Children in the Courts, edited by Mark Hardin, 1983. See also Addressing the Impact of Foster Care on Biological Children and Their Families, by Maha Younes, 2007. Children need permanence. The Guardian ad Litem must advocate for the timely resolution and permanent resolution, absent compelling reasons to the contrary of the case. The Guardian ad Litem has a duty of diligent and prompt representation and duty to expedite litigation, especially where placement of a young child is at issue. The Guardian ad Litem must attempt to reduce case delays  and ensure that the court recognizes the need to promote permanency for the child. While it is recognized that delays re usually harmful, there may be some circumstances when delays may be beneficial to the child and should be utilized.

Representing the best interest of a child should reflect the passage of time and the changing needs of the child. The Guardian ad Litem should stay in touch with the child, third party caretakers, caseworkers, and service providers throughout the term of appointment to ensure that the child’s needs are met and that the case moves quickly to an appropriate resolution. The Guardian ad Litem should monitor the implementation of the court’s orders and communicate to the responsible agency, and if necessary, the court any noncompliance. The Guardian ad Litem should ensure that services are provided and that the court’s orders are implemented in a complete and timely fashion. In order to address problems with implementation, the Guardian ad Litem should consider filing any necessary motions, including those for civil contempt, to compel implementation.

In addition, the Guardian ad Litem should ensure subpoenas are issued in a timely manner, review court orders for accuracy and take appropriate action when corrections are required. The Guardian ad Litem should ensure all hearing, if necessary. The Guardian ad Litem must ensure that termination of Parental Rights petitions are filed in a timely manner when needed to further the interests of the child and advocate for intervention designed to expedite the cessation of court involvement. Additional actions may include filing any appropriate pleadings on behalf of the child, including responses to the pleadings of other parties, to ensure that the appropriate issues are properly before the court and expedite the court’s consideration of issues important to the child’s interests.

STANDARD 9.0 Relating the Court Process to the Child

The guardian ad litem will shall explain, when appropriate, the court process and the role of the guardian ad litem to the child. The guardian ad litem will shall assure that the child is informed of the purpose of each court proceedureing. The guardian ad litem will assure the child that the child’s opinions and feelings will be made known to the court even when not consistent with the recommendations of the guardian ad litem.

COMMENT: To decrease the trauma to the child from attending court hearings, depositions and other proceedings, the guardian ad litem shall explain to the child what is happening and what is expected of the child in all proceedings involving the child. All communication should be  adapted to the child’s age, level of education, cognitive development, cultural background and degreee of language acquisition, using an interpreter in necessary. The Guardian ad Litem should carefully ask developmentally appropriate, non-suggestive questions and should work with other professionals to assess the child’s developmental and cognitive abilities in order to communicate effectively. The Guardian ad Litem should make every effort to ensure that the child understands the nature of the proceedings, the placement or services that may result, and the possibility of furture modification in placement or services. The Guardian ad Litem should ensure that the child understands how the contact the Guardian ad Litem.

Older youth should be encouraged to attend hearings and should be aware of their role during proceedings. Older youth should be provided with information about their rights, services, and permanency options, including the possibility of remaining in care until their 21^st birthday. The Guardian ad Litem will assure the child that the child’s opinion and feelings will be made known to the court even when not consistent with the recommendations of the Guardian ad Litem.

STANDARD 10.0 Participation in Proceedings Case Related Activities Outside the Courtroom

The guardian ad litem shall participate in the development and negotiation of any case plans, orders and staffings that affect the best interests of the child as they relate to the case at hand.

The guardian ad litem shall monitor implementation of service plans and court orders to determine whether services ordered by the court are being provided in a timely manner that will lead to the safe, stable permanency for the child.

COMMENT: The guardian ad litem should be present and actively participate in staffings and meetings that impact the safety of the child, and the accomplishment of any court-approved permanency goal, including Family Support Team Meetins and Permanency Planning Review Team meetings. life of the child, including, but not limited to, permanency planning review team meetings and staffings within the educational and mental health settings.

The Guardian ad Litem should provide input regarding the best interest of the child to entities or teams that develop plans for the child within the settings that may include but are not limited to the educational, medical and mental health settings. The Guardian ad Litem should participate in staffings and planning meetings within such settings when necessary to gather information pertinent to the case or to effectuate case goals.

STANDARD 11.0 Participation in Court Proceedings

The guardian ad litem shall appear at all proceedings in the cause in which the Guardian ad Litem is appointed. The Guardian ad Litem shall not waive the presence of the child at court proceedings without good cause. The Guardian ad Litem, as a party to the action, shall actively and fully participate in all court proceedings. The Guardian ad Litem may present evidence, file appropriate pleadings, and call witnesses to ensure that all information relevant to the child’s interests is presented to the court for consideration.

to represent the child’s best interests. As authorized by law the guardian ad litem may present evidence and ensure that, where appropriate, witnesses are called and examined, including, but not limited to, foster parents and psychiatric, psychological, medical, or other expert witnesses.

In the event any new developments or significant changes in the child’s circumstances occur during the pendency of the court process, the guardian ad litem may cause appropriate pleadings to be filed.

COMMENT: A Guardian ad Litem may request to testify as to particular facts relating to the child and/or the issues before the court relating to the child and his/her best interests, or with regard to his/her recommendation, if any. Under such circumstances, the Guardian ad Litem will be subject to cross-examination. It is within the discretion of the Court whether or not ot receive testimony form the Guardian ad Litem, and if testimony is permitted, regarding what subject matters the Guardian ad Litem will be permitted to testify. (See Robinson v. Robinson 128. S.W.3D 543 (WD2003))

The Guardian ad Litem may wish to appear at other proceedings involving the child and his/her best interests.

The Guardian ad Litem shall ensure the court’s receipt of all information relevant to the child’s best interest.

The guardian ad litem should be present at all court proceedings involving the child, which may include depositions and other pre-trial proceedings.

STANDARD 12.0 Protecting the Child as Witness

The guardian ad litem in a pending case shall protect the interests of the child who is a witness in any judicial proceeding in any judicial proceeding in which the Guardian ad Litem has been appointed. relating to the case in which the guardian ad litem has been appointed. The guardian ad litem shall explain, when appropriate, the court proceedings and process to the child. In matters for which the Guardain ad Litem is appointed, the Guardian ad Litem shall be present during any conferences between counsel for a party and the child.

COMMENT: The guardian ad litem must should endeavor to protect the child from multiple depositions and repetitive examinations that are not in the child’s best interests. The Guardian ad Litem shall be notified of all proceedings or meetings involving to the child. The guardian ad litem shall request that all parties give notice of any related proceedings or meetings involving the child and for any proposed contact between counsel for a party and a child. In matters for which the guardian ad litem is appointed, the guardian ad litem shall be present during any conferences between counsel for a party and the child.

STANDARD 13.0 Conflicts of Interest Recommendations to the Court

The guardian ad litem shall present recommendations to the court when authorized by law or requested by the Court on the basis of the evidence presented and consistent with the best interest of the child. provide reasons in support of these recommendations. When authorized by law, the guardian ad litem may offer evidence to the court. If the guardian ad litem testifies, the guardian ad litem shall be duly sworn as a witness and be subject to cross-examination.

COMMENT: The guardian ad litem shall ensure the court’s receipt of independent, objective information. To make a decision that serves the child’s best interests, the court must have knowledge of the child’s circumstances from all sources including which may include the parents, caseworker, and deputy juvenile officer and CASA volunteer. If the guardian ad litem has information that he or she believes to be relevant from his or her own independent investigation, the guardian ad litem should testify.

STANDARD 14.0 Recommendations to the Court Child Preferences

If it is determined that the recommendations of the guardian ad litem are not in agreement with the wishes of the child, the court shall be informed by the guardian ad litem. If the Guardian ad Litem determines that there is a conflict between advocating for the best interests of the child and representation of the child’s preferences, the Guardian ad Litem should continue to perform as the Guardian ad Litem and request appointment of another lawyer to represent the child’s preferences. Whenever the court believes that it is appropriate, the court shall discharge the guardian ad litem and appoint another.

COMMENT: At any time during the proceedings the Guardian ad Litem must inform the court of the child’s preferences even though different from his or her recommendation. There must be no conflict of interest that makes it difficult for the guardian ad litem to present recommendations that are consistent with the child’s best interests. At any time during the proceedings in order to avoid a conflict of interest, the guardian ad litem, whether a lawyer or a volunteer, must inform the court of the child’s preferences even though different from his or her recommendations. The court has discretion to decide whether the differences between the child’s preferences and the guardian ad litem’s recommendations create such a conflict of interest that a new guardian ad litem should be appointed.

STANDARD 15.0 Court Orders Training

Prior to serving, a Guardian ad Litem shall first complete 8 hours of continuing legal education specializing in Guardian ad Litem training. Thereafter, to continue to be appointed as a guardian ad litem, an attorney, shall yearly complete three hours of continuing legal education specializing in Guardian ad Litem training. Completion of the training hours shall be documented by an affidavit or other evidence filed with the appointing court by July 31 of each year.  The Missouri Bar Association shall qualify a continuing legal education program as “Guardian ad Litem training”. Any continuing legal education required by this standard shall not be completed by self-study.

Attorneys who have completed either a 12 hour course or a 6 hour yearly training within the last 5 years, shall not be required to complete the initial 8 hour course of study. Attorneys who are currentyly serving as Guardian ad Litems, who have not completed training in the last 5 years shall have one year to complete the initial 8 hour training.

No person shall be appointed as guardian ad litem without first completing twelve hours of specialized training. Thereafter, to continue to be appointed as a guardian ad litem a person shall complete six hours of specialized training annually. Completion of the training hours shall be evidenced by an affidavit filed with the appointing court by July 31 of each year. The court may accept, in lieu of the initial twelve hours of specialized training, an equivalent number of hours experience as a guardian ad litem prior to the effective date of the adoption of these standards.

Programs providing guardian ad litem training to meet the provisions of this standard shall be accredited by the Supreme Court of Missouri’s judicial education committee.

COMMENT: Guardian ad litem practice is unique and complex and, as such requires special education, training and experience. The guardian ad litem needs an understanding of family dynamics and child development in order to evaluate observed and reported behaviors. The guardian ad litem must interpret lengthy case information, which may include references to stress and abuse syndromes, physical determinations of abuse, causal factors in abuse and neglect, and the concepts of treatment designed to address abusive behaviors. The guardian ad litem must be able to understand these references and see how determinations of probable cause are developed, how and why treatment programs are prescribed, and how to incorporate these references into his or her recommendations for the best interest of the child.

The specialized training shall may include, but is not limited to, the following topics:

1. Dynamics of child abuse and neglect issues
2. Factors to consider in the determining the best interest of the child, including permanency planning and the child’s right to be with his family;
3. Inter-relationships between family system, legal process and the child welfare system
4. Mediation and negotiation skills
5. Federal, state and local legislation and case law affecting children
6. Cultural and ethnic diversity and gender-specific issues
7. Family and domestic violence issues
8. Available community resources and services
9. Child development issues 
10. Guardian ad litem standards

The guardian ad litem is not expected to make diagnostic or therapeutic recommendations but is expected to provide an information base from which to draw resources. Therefore, The guardian ad litem must have a working knowledge of family dynamics and be able to compare and relate this concept to the observations, reports and documentation received regarding the child and the child’s family.

Court Orders-Deleted and incorporated into other standards

The guardian ad litem should request orders that are clear, specific, and, where appropriate, include a time line for the assessment, services, placement, treatment and evaluation of the child and the child’s family.

COMMENT: All court orders should clearly reflect the requirements and expectations of each party so that stability for the child is achieved as soon as possible.

STANDARD 16.0 Training of Guardian ad litem