Does a Child Need His Own Attorney AND a Guardian ad Litem?

by Kea Bird-Riley, CASA Staff Attorney/Guardian ad LitemKea1

The Guardian ad Litem is the child’s voice in Family Court, right?  But there are times when the child may feel that the guardian ad litem is tone deaf.

It is common for the Guardian ad Litem’s recommendation of what is in the child’s best interest to run afoul of what the child believes to be in his or her best interest.  For example, a child may be under jurisdiction due to a parent’s abuse and neglect that includes habitual drug use.  Yet, the child may express a desire to return home soon, if not immediately, before the parent has rectified their substance abuse or completed the court ordered services required for reunification.

The Missouri Supreme Court requires Guardian ad Litems to be guided by the child’s best interest and to exercise independent judgment.  In fact, the comment in Standard 3.0 clearly distinguishes the Guardian ad Litem’s role from that of the child’s attorney’s role.

 “A 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.” [Standard 3.0 Comment].  However, Guardian ad Litems still have an ethical obligation to inform the Court of the child’s preferences and wishes. [Standard 13.0]

While the child’s preference may differ from the Guardian ad Litem’s recommendation, the Court does not customarily appoint a separate attorney solely for that reason.  In fact, the Missouri Supreme Court requires the Court to appoint counsel and a Guardian ad Litem when necessary to assure a full and fair hearing.  [Rule 115.02].  The necessity for separate appointed counsel in addition to a Guardian ad Litem may arise when: the juvenile has a child under Family Court jurisdiction; has been charged with a status offense; or has been alleged to have violated a state law or municipal ordinance.

So what is the difference?  The attorney seeks the end result, or as close to it, desired by the child.  The Guardian ad Litem’s role is to represent the child’s best interest, even if it is contrary to the child’s preferences.

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When Should a Child Appear in Court?

by Kate Nolen, CASA Director of Legal ServicesKate1

One of the first questions attorneys and CASA volunteers often ask is whether a child should attend court. Juvenile court in any jurisdiction can, at best, be a confusing and sometimes overwhelming environment for a child. Emotions understandably run high and, coupled with the large number of people often gathered in the waiting area, it can be a stressful situation for a child already worried about where she’s going to sleep that night or when she might get to visit with her mom and dad.

                The Missouri Supreme Court rules tell us that when deciding whether to proceed without the child’s presence, the court should consider the child’s age, maturity, the nature of the evidence, and whether the GAL will waive the child’s presence.

                Let’s look at age. Older children and teens should attend court in order to address the judge and be a part of the court process. And if you’ve ever had the opportunity to listen to a panel of foster youth talk about their experiences in the system, you’ve probably heard a common theme. Teenagers usually want to be at the hearings. Imagine a group of people meeting periodically to discuss the details of your life – among other things, where you’re going to live and when you’re going to reunite with your family. We’d all want to be there.

                But what if a child is younger? We look to the Missouri Standards for Guardians ad Litem for guidance on when GALs should be willing to waive a child’s presence. The Standards state, “The guardian ad litem shall not waive the presence of the child at court proceedings without good cause.”  So what is good cause? Good cause may include the child’s therapist recommending against it or maybe the child doesn’t want to come to court because he’ll miss school or an extracurricular activity. It might be easier, however, to think about what is not good cause. For example, it’s not good cause simply because it’s not convenient to bring the child to court or because the child is placed far away, making transportation difficult.

                GALs and other parties alike are often worried about the potential harm in having a child attend court. One way to alleviate some of the potential stress of attending hearings is to explain the court process thoroughly to the child before and after any hearings. The comment in Standard 9.0 states,

“to decrease the trauma to the child, the guardian ad litem should explain to the child what is happening and what is expected of the child in all proceedings involving the child…the guardian ad litem should make a diligent effort to ensure that the child understands the nature of the proceedings, the placement or services that may result, and the possibility of future modifications in placement or services.”

                Although they give us factors to consider, the statutes and GAL rules don’t seem to give us clear examples of when a child’s presence at court should be waived. And there’s likely a good reason for that. Every child and every family is different. In order to determine what is best for a child, the GAL must know the child. A list of rules about when a child should attend court and when she shouldn’t will not fit every child. Bottom line: only through face-to-face contact with the child in addition to an ongoing dialogue with service and placement providers can the GAL make the best decision about when to waive a child’s presence at court.