7.1 APPOINTMENT

7.1.1 RULES
Both the Children’s Code and the Children’s Court Rules are silent on the appointment of a guardian ad litem for a respondent who is incompetent or a minor.

Guidance may be found in Rule 1-017(C) of the Rules of Civil Procedure, which provides in part:

The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

Rule 16-114 of the Rules of Professional Conduct addresses situations in which an attorney is representing a respondent who is a minor or incompetent:

A. Client-lawyer relationship. When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

B. Protective action. A lawyer may seek the appointment of a guardian or conservator or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.

The Statutory Law on Trials authorizes the appointment of a guardian ad litem for an incapacitated person who is sued. §§38-4-14 and 38-4-15. While the Rules of Civil Procedure refer to “incompetent person” and the Rules of Professional Conduct refer to “a client’s ability to make adequately considered decisions,” the definition of “incapacitated person” in §38-4-14 offers some guidance for courts and practitioners considering the possible need for additional assistance for a respondent. It is broad in the sense that it covers a wide range of causes for the incapacity, but narrow in the sense that the extent of the inability required is great. An “incapacitated person” means “any person who demonstrates over time either partial or complete functional impairment by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he is unable to manage his personal care or he is unable to manage his property and financial affairs.”

7.1.2 CASE LAW
In State ex rel. CYFD v. Lilli L., 1996-NMCA-014, 121 N.M. 376, a mother appealed the termination of her parental rights and argued that, because she was a minor, the children’s court should have appointed both a guardian ad litem and an attorney to represent her. The court stated:

As a general rule, the court, upon being apprised that a minor is unrepresented by counsel, has a duty to appoint a guardian ad litem or an attorney to protect the interests of such child….

[W]hile it is a general practice under SCRA 1-017(C) for a guardian ad litem to be appointed to represent a minor who is a defendant in a civil case, it is clear the court is not required to appoint a guardian ad litem where the child is represented by counsel in such action.

121 N.M. at 378-379.

In In the Matter of Jason Y., 106 N.M. 406, 409 (Ct. App. 1987), a mother appealed the termination of her parental rights and argued that, because there were issues of her mental incompetence, she was denied equal protection in relation to the protections provided to criminal defendants. The Court of Appeals rejected her argument, citing the different considerations to be balanced in a civil case, in particular the needs of the child, as opposed to those in a criminal case. The court stated:

While criminal proceedings may be suspended where a defendant is not competent, different rules apply in civil cases. An infant or an incompetent person may sue or be sued. SCRA 1986, 1-017(C) provides in part: “[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.” Mother was at all times material to the proceeding represented by counsel. No claim is advanced that the court erred either by failing to enter an order for the protection of respondent or by failing to appoint a separate guardian ad litem.

106 N.M. at 409.

A review of these authorities makes it clear that representation by counsel is generally sufficient. Indeed, counsel must, as far as reasonably possible, maintain a normal attorney-client relationship with the impaired client and request protective action only if counsel reasonably believes that the client cannot adequately act in the client’s own interest.

Appointment of a guardian ad litem rests in the equitable discretion of the court. If a guardian ad litem is appointed, it should be clear that both the GAL and counsel remain in the case, but with different roles.

7.2 RESPONSIBILITIES
The role of the guardian ad litem for a mentally ill parent in a TPR proceeding is discussed briefly but forcefully in State ex rel. CYFD v. Stella P., 1999-NMCA-100, 127 N.M. 699. The attorney for the respondent mother had requested that the children’s court appoint a guardian ad litem for the mother “in order to address the issue of her best interests herein.” The children’s court appointed the GAL but did not define his role in the order. Id. ¶4. Quoting from different cases, the Court of Appeals wrote:

• Mother's GAL is “not a mere figurehead, but is required to take all steps reasonably necessary to protect and promote the interests of his ward in litigation.”
• Appointment of a GAL for an incompetent is “not a bare technicality,… the office involves more than perfunctory and shadowy duties.”
• "Appointment as guardian ad litem of a minor is a position of the highest trust and no attorney should ever blindly enter an appearance as guardian ad litem and allow a matter to proceed without a full and complete investigation into the facts and law so that his clients will be fairly and competently represented and their rights fully and adequately protected and preserved.”
• "A guardian ad litem may not waive the substantive rights of the ward, but must require proper legal proof.”

Id., ¶¶29-30 (citations omitted).

The dual role of a guardian ad litem as an advocate for the client and as an arm of the court is discussed in Collins ex rel. Collins v. Tabet, 111 N.M. 391 (1991). In that case a GAL was appointed to represent the interests of a minor in connection with court approval of a financial settlement in a medical malpractice case.

[I]t is clear that in New Mexico, and probably elsewhere, a guardian ad litem does represent the interests of his or her ward, but the guardian may at the same time assist the court in carrying out its duty of protecting the interests of the child….The guardian ad litem thus may fulfill the dual role of providing information to the court to enable it to pass on the reasonableness of a settlement, while at the same time protecting the ward’s interests by zealous advocacy and thorough, competent representation.

Id. at 400 (emphasis in the original).

The court determined that “a limited factual inquiry was necessary to determine the nature of Tabet’s appointment and the extent to which he functioned within the scope of that appointment,” suggesting that the role of a GAL could vary from case to case. Id. at 403. As in Stella P., the trial court had not defined the role of the GAL in the proceeding when it made the appointment. Id. at 394.

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