In juvenile dependency cases, a Guardian ad litem is an attorney appointed by the Court to advocate for the child’s best interest.¹ According to the governing statute, Ala. Code § 12-15-304, in every dependency matter and in every termination of parental rights matter, the juvenile court must appoint a Guardian ad litem. A “dependency matter” refers to a court case that involves a child of a parent who is “unable or unwilling to discharge” their duties to and for said child. Ala. Code § 12-15-102(8). An action seeking to terminate a parent’s parental rights is a little more straightforward. A termination action can be initiated by the Department of Human Resources, a licensed child placing agency, a parent, a child, or any interested person. Ala. Code § 12-15-317.
The Guardian ad litem’s primary responsibility is to “protect the best interests of the child” through the entirety of the life of the case. This charge is uniquely different than the posture that attorneys have towards their clients in any other legal matter. Normally, an attorney is required to advocate for the outcome that their client wants (unless of course the outcome is morally repugnant). In the case of a Guardian ad litem, they are not required to advocate for what their client wants. The Guardian ad litem is mandated to advocate for what is in their client’s best interest, even if it conflicts with what their client wants.
The Guardian ad litem also has very specific duties in their representation of the child’s best interest. These duties come from the Legislature and are codified in Ala. Code § 12-15-304. These duties are not mere suggestions.
First, the Guardian ad litem must meet with the child prior to every court hearing and “when apprised of emergencies or significant events impacting the child.” This is a time-consuming task. Ideally, the Guardian ad litem will meet with the child in their placement environment – in the foster home. This should not be a 15-minute stop for the Guardian ad litem. The Guardian ad litem should take time to establish rapport with the child, get to know the foster parents, look in the child’s room and other play areas. The Guardian ad litem should meet with any other persons living in the home.
Second, the Guardian ad litem must explain, in an age-appropriate way, what is expected to happen “before, during, and after” each juvenile court hearing. If the child is two-years old, this is obviously not practicable. However, the Guardian ad litem can and should be communicating these things to the young child’s foster parents. If a child is around ten or older, then it would be wise for the Guardian ad litem to seek to put the child’s fears or concerns at rest by communicating realistic expectations. If the child is expected to be present at court, meeting with the judge, or provide testimony, the Guardian ad litem should spend an abnormal amount of time preparing the child for these events.
Third, the Guardian ad litem must conduct a “thorough and independent” investigation. This is a fairly flexible standard and depends on a case-by-case basis. However, this standard cannot be met by calling to check-in with the foster parent the day before court. This standard cannot be met by meeting with the child for five minutes before the court hearing. No one would be satisfied with a plumber, electrician, or mechanic who put that kind of effort into their work. Webster-Meriam defines thoroughness as “exhaustive”, “having full mastery.” The Guardian ad litem should “independently” investigate the legal parents’ homes, employment, and efforts to complete services. The Guardian ad litem should do the same for any interested relatives.
Fourth, the Guardian ad litem should “advocate for appropriate services for the child and the family.” Those services could be counseling, anger management, in-home services, psychological evaluation, substance abuse counseling, etc. This duty is built on the previous ones. A Guardian ad litem cannot advocate for appropriate services if they have not met with the child and conducted an independent and thorough investigation.
Fifth, the Guardian ad litem must attend all of the court hearings and fully engage in the advocacy process. This might seem like a no-brainer, but the duty has been codified for a reason – human nature tends toward entropy. Throughout the life of a child’s dependency or termination case, there may be many kinds of hearings: shelter care, adjudicatory, permanency reviews, dispositional, etc. The Guardian ad litem is expected to attend them all and to participate vigorously. A skilled Guardian ad litem who has excellently carried out the previous duties can be an invaluable asset at trial. They can speak with authority to the court regarding their opinion as to the child’s best interest, they can ask poignant questions on cross-examination, and they can defend the child from anti-justice overtures from any party.
In some states, a Guardian ad litem does not have to be an attorney. However, to become a Guardian ad litem in Alabama, an attorney must first be licensed for general practice of law. Then, the attorney must go through specialized training to become certified as a Guardian ad litem. In addition, the Guardian ad litem is required to undergo continuing education to maintain their certification.
A Guardian ad litem who takes their role and duties seriously can change the course of a child’s life for good. We have seen it many times. If you have any questions regarding your child’s Guardian ad litem, please contact us today.
¹ A GAL may also be appointed to represent natural parents who are minors or who are mentally handicapped. Ala. Code § 12-15-304(e).
What Should You Expect From A Guardian ad Litem?