| 6.1 INTRODUCTION
In 2005, the Legislature changed the representation of children in abuse and neglect cases. Previously, each child, regardless of age, was appointed a guardian ad litem (GAL). Under the law as amended, a child under the age of 14 will continue to have an attorney GAL, who represents the child’s best interests to the court, but children who are 14 or older are now appointed an attorney to represent their expressed preferences. See Handbook Chapter 6A.
Although the GAL must inform the court of the child’s declared position, the GAL must advocate for the child’s best interests. By contrast, the child’s attorney is client-directed and advocates for the child’s position after counseling the child on his or her choices, the traditional model of client representation.
6.2 ROLE OF THE GAL
A GAL is “an attorney appointed by the children’s court to represent and protect the best interests of the child in a court proceeding.” §32A-1-4(I). Indeed, the GAL must zealously represent the child’s best interest to the court. §32A-4-10(F). However, the GAL must also inform the court of the child’s declared position at every hearing. §32A-1-7.
6.3 APPOINTMENT
When a petition alleging abuse or neglect of a child under the age of 14 is filed, the court must appoint a GAL for the child. §32A-4-10(C); see also Rule 10-305(D). Only an attorney with appropriate experience may be appointed as a GAL. §32A-4-10(C). When reasonable and appropriate, the court must appoint a GAL who is knowledgeable about the child’s particular cultural background. §32A-4-10(D).
An officer or employee of an agency that has legal custody of the child may not serve as the child’s GAL. §32A-4-10(C). In addition, no party to the proceeding, or employee or representative of a party, is permitted to serve as a child’s GAL. §32A-1-4(I).
As the child approaches the age of 14, the GAL should discuss with the child the change in the form of representation that will take place at age 14. The GAL must file either a notice of continued representation as attorney for the child or a motion to request the appointment of an attorney for the child. Rule 10-305.2(A). The law contemplates that the GAL will continue as the child’s attorney, but the court will appoint a different attorney if the child requests different counsel, the GAL requests removal, or the court determines that appointment of a different attorney is appropriate. §32A-4-10(E).
6.4 PRIMARY RESPONSIBILITIES
6.4.1 REASONABLE AND APPROPRIATE DUTIES
The GAL’s powers and duties are outlined in §32A-1-7. The GAL is required to “zealously represent the child’s best interests in the proceeding for which the guardian ad litem has been appointed and in any subsequent appeals.” §32A-1-7(A). The court must assure that the child receives zealous representation by the GAL in accordance with these statutory provisions. §32A-4-10(F).
After consultation with the child, the GAL must convey the child’s declared position to the court at every hearing. §32A-1-7(D).
Unless “the child’s circumstances render these duties and responsibilities unreasonable,” the GAL is required by §32A-1-7(E) to undertake the following:
- Meet with and interview the child prior to custody, adjudicatory and dispositional hearings, judicial reviews, and any other hearings scheduled under the Code.
- Communicate with health care, mental health care and other professionals involved in the child’s case.
- Review medical and psychological reports relating to the child and the respondents.
- Contact the child before and after any changes in placement. See also §32A-4-14.
- Attend citizen review board (CRB) meetings concerning
the child.
- Report to the court on the child’s adjustment to placement, CYFD’s and the respondent’s compliance with court orders and treatment plans, and the child’s degree of participation during visitation.
- Represent and protect the child’s cultural needs.
The GAL is prohibited from serving simultaneously as the child’s GAL in an abuse or neglect case and as the child’s attorney in a delinquency case. §32A-1-7(I).
6.4.2 NON-STATUTORY ACTIVITIES
Although not specifically enumerated in the Children’s Code, other activities may be reasonable and appropriate in the context of the case, for example:
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Advocacy in other forums, such as attending treatment team meetings if the child is in a residential mental health placement or in treatment foster care; participating in Individualized Education Plan meetings for special education services at school; or working through administrative channels to secure other health or social services. The GAL should be familiar with federal statutes that may affect the child’s rights, such as the Indian Child Welfare Act, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act.
- Participating in discharge planning for the child, such as from one level of care to another or from foster care to a permanent placement. The GAL’s knowledge of therapeutic intervention models, pharmacological interventions, child development, and state and federal adoption subsidies can be an important resource for the child in those discussions.
As a practical matter, the GAL should cooperate and share expertise with the court appointed special advocate (CASA) in the case, with the CASA able to draw on the GAL’s legal expertise and each benefiting from the other’s knowledge of the case.
6.4.3 THE GAL IN COURT
The child who is the subject of an abuse or neglect petition is a party to the case. Rule 10-108(B)(3). The GAL should actively participate in all court proceedings. This participation includes:
- Making pretrial motions.
- Making opening and closing statements.
- Calling and adequately examining witnesses.
- Preparing and offering evidence and exhibits.
- Making proper objections or responding
to objections raised by opposing counsel.
- Preserving issues for appeal.
- Filing briefs.
- Providing proposed findings of fact and conclusions of law.
“Passive representation” that does not include these activities may be materially deficient and fail to meet the standards prescribed by §32A-1-7. State ex rel. CYFD in the Matter of Esperanza M., 1998-NMCA-039, ¶40, 124 N.M. 735. Any party may petition the court for an order to remove a GAL who has a conflict of interest or is unwilling or unable to zealously represent the child’s best interests. §32A-1-7(C).
Under Children’s Court Rule 10-310, the GAL has an obligation to disclose certain information at least 15 days before any adjudicatory hearing or termination of parental rights hearing. See Rule 10-310,
summarized at Handbook §26.3.4. This includes both the child’s declared position and the guardian ad litem’s position.
6.5 ADDITIONAL RESPONSIBILITIES
6.5.1 MENTAL HEALTH AND DEVELOPMENTAL
DISABILITIES RESIDENTIAL PLACEMENT DECISIONS
Under §32A-4-23(E), the GAL in an abuse or neglect case serves as GAL for the child for the purposes of the Children’s Mental Health and Developmental Disabilities Act until the child turns 14. This Act was extensively revised in 2007 and it is important that GALs become familiar with its provisions. See Handbook Chapter 32 for a summary of the Act as amended.
When a child in CYFD’s custody is admitted to a residential facility for mental health treatment or developmental disabilities habilitation, the guardian ad litem, representing the child’s best interests, has the duty of certifying to the court whether admission to the facility is appropriate. §32A-6A-20(G) and (H). The admission will be considered appropriate if the GAL certifies that:
- The parent, guardian or custodian understands and consents to the admission.
- The admission is in the child’s best interests.
- The admission is appropriate and consistent with the least drastic means principle.
If the GAL makes this certification to the court, there is no involuntary placement hearing even if the child disagrees with the placement. The placement is reviewed every 60 days. §32A-6A-20(K).
If the GAL does not certify that the admission is appropriate, the child must be released or involuntary placement procedures under §32A-6A-22 must be initiated. §32A-6A-20(L). The child’s rights at the involuntary placement hearing are set out in §32A-6A-22(H).
6.5.2 REPRESENTATION ON APPEAL
The GAL in an abuse or neglect case is obligated to represent the child during any appellate proceedings unless excused by the court. §32A-1-7(B). This includes initiating an appeal on the child’s behalf or filing an answer brief. On appeal, the GAL continues to represent the child’s best interest but must present the child’s declared position as well. Esperanza M., 1998-NMCA-039, ¶40.
6.5.3 RETAINING SEPARATE COUNSEL
The GAL may retain separate counsel to represent the child in a tort action or any other action outside the jurisdiction of the Children’s Court. The GAL must provide written notice to the court within ten days of retaining separate counsel. The GAL is prohibited from having any pecuniary interest in the separate action. §§32A-1-7(F).
6.6 RELATIONSHIP TO OTHERS IN THE CASE
6.6.1 RELATIONSHIP TO THE CHILD
The Children’s Code sets forth a dual role for GALs in relation to the child. The GAL must “zealously represent the child’s best interests,” §32A-1-7(A), and must “convey the child’s declared position to the court at every hearing.” §32A-1-7(D). The GAL therefore could be in a position of presenting contrary positions to the court. The court in Esperanza M. recognized these dual responsibilities and stated: “The guardian ad litem is required to advocate the child’s expressed position only to the extent that the child’s desires are, in the guardian ad litem’s professional opinion, in the child’s best interests. The guardian ad litem may properly present the child’s wishes to the court, and at the same time advise the court of those facts and matters which the guardian believes bear upon and affect the child’s best interests.” Esperanza M., 1998-NMCA-039, ¶36.
In most cases, a GAL is expected to represent both the child’s best interest and the child’s position: “Unless the guardian ad litem’s perception of the child’s best interest is so incongruous with the child’s position that the guardian ad litem absolutely refuses to present the child’s position, we see no need for the guardian ad litem to withdraw as counsel.” Id. ¶39. .
6.6.2 RELATIONSHIP TO OTHER PARTIES
The child’s GAL may contact the CYFD social worker outside the presence of CYFD’s attorneys to discover factual information relevant to the representation of the child. State ex rel. CYFD in the Matter of George F., 1998-NMCA-119, ¶16, 125 N.M. 597. When investigating the facts affecting the child in order to report to the court as required by §32A-1-7, the GAL “is acting to ‘assist the court in carrying out its duty’ and is not functioning solely as an attorney advocating the child's wishes, nor in the traditional manner of an attorney who represents a client with a single-minded duty solely to that client.” Id. ¶¶15-16, (citing Collins ex rel. Collins v. Tabet, 111 N.M. 391, 400 (1991) (emphasis in original)). Accordingly, “the Rules of Professional Conduct that are designed strictly for the traditional role of attorneys do not fit this circumstance” and “the GAL is not prohibited by Rule 16-402 from contacting social workers outside the presence of the Department attorneys.” Id. ¶16.
6.6.3 RELATIONSHIP TO THE COURT
The children’s court judge “has an affirmative duty to assure that the best interests of a child are legally represented” as part of “the court’s traditional role of protecting the child’s best interests.” Esperanza M., 1998-NMCA-039, ¶41. This includes “a duty to elicit the guardian ad litem’s position on substantive issues throughout the course of the abuse and neglect proceeding.” Id. ¶42. If a GAL fails to adequately represent the child’s best interests, the court could consider whether the best interests of the child mandate that different counsel be appointed. Id.
6.7 PERFORMANCE STANDARDS
The New Mexico Supreme Court has adopted performance standards for attorneys representing children as guardians ad litem in abuse and neglect cases in Children’s Court. The standards adopted in 2003 and amended in 2006 are reprinted here: PDF.
6.8 RECOMMENDED READING
- Peters, Jean Koh, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions, Third, International Edition. Matthew Bender & Company, Inc., a member of the LexisNexis Group, 2007.
- Renne, Jennifer L., Legal Ethics in Child Welfare Cases. American Bar Association, 2004.
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