H.B. 94 Enrolled

GUARDIAN AD LITEM AMENDMENTS
1997 GENERAL SESSION
STATE OF UTAH
Sponsor: Steve Barth
AN ACT RELATING TO GUARDIANS AD LITEM; CREATING A RESTRICTED ACCOUNT
FOR RECRUITING, TRAINING, AND SUPERVISING CASA VOLUNTEERS;
PROVIDING FOR DONATION OF JUROR'S FEES TO THAT ACCOUNT;
CREATING A RESTRICTED ACCOUNT TO FUND THE OFFICE OF THE
GUARDIAN AD LITEM DIRECTOR; ALLOCATING A PERCENTAGE OF THE
SURCHARGE TO THAT ACCOUNT; CLARIFYING RESPONSIBILITIES OF
ATTORNEY GUARDIANS AD LITEM; PROVIDING FOR THE USE OF TRAINED
PARALEGALS BY THE OFFICE OF THE GUARDIAN AD LITEM DIRECTOR; AND
PROVIDING AN EFFECTIVE DATE.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
21-5-4, as last amended by Chapter 219, Laws of Utah 1992
78-3a-912, as enacted by Chapter 1 and last amended by Chapter 318, Laws of Utah 1996
78-7-9, as last amended by Chapter 1, Laws of Utah 1996
ENACTS:
63-63a-8.5, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 21-5-4 is amended to read:
21-5-4. Fees and mileage.
(1) Every juror and witness legally required or in good faith requested to attend a trial
court of record or not of record or a grand jury is entitled to:
(a) $17 for each day in attendance; and
(b) if traveling more than 50 miles, $1 for each four miles in excess of 50 miles actually
and necessarily traveled in going only, regardless of county lines.
[(c)] (2) Persons in the custody of a penal institution upon conviction of a criminal offense

are not entitled to a witness fee.
[(2)] (3) A witness attending from outside the state in a civil case is allowed mileage at the
rate of 25 cents per mile and is taxed for the distance actually and necessarily traveled inside the state
in going only.
[(3)] (4) If the witness is attending from outside the state in a criminal case, the state shall
reimburse the witness under Section 77-21-3.
[(4)] (5) A prosecution witness or a witness subpoenaed by an indigent defendant attending
from outside the county but within the state may receive reimbursement for necessary lodging and
meal expenses under rule of the Judicial Council.
(6) There is created within the General Fund, a restricted account known as the CASA
Volunteer Account. A juror may donate the juror's fee to the CASA Volunteer Account in $17
increments. The Legislature shall annually appropriate money from the CASA Volunteer Account
to the Administrative Office of the Courts for the purpose of recruiting, training, and supervising
volunteers for the Court Appointed Special Advocate program established pursuant to Section
78-3a-912.
Section 2. Section 63-63a-8.5 is enacted to read:
63-63a-8.5. Guardian Ad Litem Services Account established -- Funding -- Uses.
There is created in the General Fund a restricted account known as the Guardian Ad Litem
Services Account, for the purpose of funding the Office of the Guardian Ad Litem Director, in
accordance with the provisions of Sections 78-3a-911 and 78-3a-912. The Division of Finance shall
allocate 1.75% of the collected surcharge established in Section 63-63a-1 to the Guardian Ad Litem
Services Account. That amount may not, however, exceed the amount appropriated by the
Legislature.
Section 3. Section 78-3a-912 is amended to read:
78-3a-912. Appointment of attorney guardian ad litem -- Duties and responsibilities
-- Training -- Trained staff and court appointed special advocate volunteers -- Costs --
Immunity.
(1) The court may appoint an attorney guardian ad litem to represent the best interest of a

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minor involved in any case before the court and shall consider only the best interest of a minor in
determining whether to appoint a guardian ad litem.
(2) An attorney guardian ad litem shall represent the best interest of each minor who may
become the subject of a petition alleging abuse, neglect, or dependency, from the date the minor is
removed from his home by the Division of Child and Family Services, or the date the petition is
filed, whichever occurs earlier.
(3) [Each] The Office of the Guardian Ad Litem Director, through an attorney guardian ad
litem, shall:
(a) represent the best interest of the minor in all proceedings;
(b) be trained in applicable statutory, regulatory, and case law, and in accordance with the
United States Department of Justice National Court Appointed Special Advocate Association
guidelines, prior to representing any minor before the court;
(c) conduct [a thorough and] or supervise an independent investigation in order to obtain
first-hand, a clear understanding of the situation and needs of the child;
(d) personally or through a trained volunteer, paralegal, or other trained staff, determine the
extent of contact the minor or his family has had with the Division of Child and Family Services;
(e) personally or through a trained volunteer[, determine whether there are relatives or close
family friends who would be appropriate and willing to take the minor], paralegal, or other trained
staff, assess whether kinship placements have been adequately explored and investigated by the
Division of Child and Family Services, and make recommendations to the court regarding the best
interests of a child in kinship placements;
(f) personally or through a trained volunteer[, determine], paralegal, or other trained staff,
assess whether there are alternatives to continued removal of the minor, including in-home services
or removal of the perpetrator;
(g) personally or through a trained volunteer, paralegal, or other trained staff, review the
Division of Child and Family Services' records regarding the minor and his family, and all other
necessary and relevant records pertaining to the minor, including medical, psychological, and school
records;

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(h) personally meet with the minor, personally interview the minor if the minor is old
enough to communicate, determine the minor's goals and concerns regarding placement, and
personally assess or supervise an assessment of the appropriateness and safety of the minor's
environment in each placement;
(i) file written motions, responses, or objections at all stages of a proceeding when necessary
to protect the best interest of a minor;
(j) either personally or through a trained volunteer, paralegal, or other trained staff, conduct
interviews, if appropriate and permitted by the Rules of Professional Conduct, with the minor's
parents, foster parents, caseworkers, therapists, counselors, school personnel, mental health
professionals, where applicable and, if any injuries or abuse have occurred or are alleged, review
photographs, available video or audio tape of interviews with the minor, and contact appropriate
health care facilities and health care providers;
(k) either personally or through a trained volunteer, paralegal, or other trained staff, identify
appropriate community resources and advocate for those resources, when appropriate, to protect the
best interest of the minor;
(l) personally attend all court hearings, and participate in all telephone conferences with the
court unless the court waives that appearance or participation;
(m) personally or through a trained volunteer, paralegal, or other trained staff, attend all
administrative and foster care citizen review board hearings [and reviews] pertaining to the minor's
case;
(n) prepare for hearings;
(o) present witnesses and exhibits when necessary to protect the best interest of the minor;
(p) participate in all appeals unless excused by order of the court;
(q) [insure that] calculate the schedule for administrative or foster care citizen review board
hearings and [periodic reviews are scheduled and held in accordance with the requirements of] other
hearings required by state and federal law and regulation, and notify the Division of Child and
Family Services if those hearings are not held in accordance with those requirements;
(r) conduct interviews with potential witnesses and review relevant exhibits and reports;

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(s) make clear and specific recommendations to the court concerning the best interest of the
minor at every stage of the proceeding, including all placement decisions, and ask that clear and
specific orders be entered for the provision of services, treatment provided, and for the evaluation,
assessment, and protection of the minor and his family;
(t) be familiar with local experts who can provide consultation and testimony regarding the
reasonableness and appropriateness of efforts made by the Division of Child and Family Services
to maintain a minor in his home or to reunify a minor with his parent;
(u) to the extent possible, and unless it would be detrimental to the minor, personally or
through a trained volunteer, paralegal, or other trained staff, keep the minor advised of the status of
his case, all court and administrative proceedings, discussions, and proposals made by other parties,
court action, and psychiatric, medical, or other treatment or diagnostic services that are to be
provided to the minor;
(v) [insure that clear and specific orders are entered for the provision of services, treatment
provided, and for the] review proposed orders for, and as requested by the court, prepare proposed
orders with clear and specific directions regarding services, treatment, and evaluation, assessment,
and protection of the minor and his family;
(w) personally or through a trained volunteer, paralegal, or other trained staff, monitor
implementation of a minor's treatment plan and any dispositional orders to determine whether
services ordered by the court are actually provided, are provided in a timely manner, and attempt to
assess whether they are accomplishing their intended goal; and
(x) inform the court promptly, orally or in writing, if:
(i) court-ordered services are not being made available to the minor and his family;
(ii) the minor's family fails to take advantage of court-ordered services;
(iii) court-ordered services are not achieving their purpose;
(iv) the division fails to hold administrative hearings or reviews as required by state and
federal law and regulation; or
(v) any violation of orders, new developments, or changes have occurred that justify a
review of the case.

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(4) (a) An attorney guardian ad litem may [utilize] use trained volunteers, in accordance with
Title 67, Chapter 20, Volunteer Government Workers Act, trained paralegals, and other trained staff
to assist in investigation and preparation of information regarding the cases of individual minors
before the court. An attorney guardian ad litem may not, however, delegate his responsibilities
described in Subsection (3).
(b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained in
and follow, at a minimum, the guidelines established by the United States Department of Justice
Court Appointed Special Advocate Association.
(c) The court may [utilize] use volunteers trained in accordance with the requirements of
Subsection (b) to assist in investigation and preparation of information regarding the cases of
individual minors within the jurisdiction.
(d) When possible and appropriate, the court may use a volunteer who is a peer of the minor
appearing before the court, in order to provide assistance to that minor, under the supervision of an
attorney guardian ad litem or trained volunteer, paralegal, or other trained staff.
(5) The attorney guardian ad litem shall continue to represent the best interest of the minor
until released from his duties by the court.
(6) (a) The juvenile court is responsible for all costs resulting from the appointment of an
attorney guardian ad litem and the costs of volunteer, paralegal, and other staff appointment and
training, and shall use funds appropriated by the Legislature for the guardian ad litem program to
cover those costs.
(b) When the court appoints an attorney guardian ad litem under this section or Section
78-7-9, the court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and
volunteer expenses against the minor's parents or parent in a proportion that the court determines to
be just and appropriate. The court may not assess those fees or costs against a parent who is found
to be impecunious.
(7) An attorney guardian ad litem appointed under this section, when serving in the scope
of his duties as guardian ad litem is considered an employee of the state for purposes of
indemnification under Title 63, Chapter 30, Utah Governmental Immunity Act.

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(8) (a) An attorney guardian ad litem shall represent the best interest of a minor. If the
minor's wishes differ from the attorney's determination of the minor's best interest, the attorney
guardian ad litem shall communicate the minor's wishes to the court in addition to presenting his
determination of the minor's best interest. A difference between the minor's wishes and the
attorney's determination of best interest may not be considered a conflict of interest for the attorney.
(b) An attorney guardian ad litem [is responsible to] shall formulate an independent position,
after considering all relevant evidence, in accordance with the requirements of Subsection (3). His
recommendations to the court shall be a result of his independent investigation.
(9) An attorney guardian ad litem shall be provided access to all Division of Child and
Family Services records regarding the minor at issue and his family.
(10) An attorney guardian ad litem shall maintain current and accurate records regarding the
number of times he has had contact with each minor and the actions he has taken in representation
of the minor's best interest.
(11) (a) Except as provided in Subsection (b), all records of an attorney guardian ad litem
are confidential and may not be released or made public upon subpoena, search warrant, discovery
proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2, Government Records
Access and Management Act.
(b) All records of an attorney guardian ad litem are subject to legislative subpoena, under
Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the Legislature.
(c) Records released in accordance with Subsection (b) shall be maintained as confidential
by the Legislature. The Office of the Legislative Auditor General may, however, include summary
data and nonidentifying information in its audits and reports to the Legislature.
(d) Because of the unique role of an attorney guardian ad litem described in Subsection (8),
and the state's role and responsibility to provide a guardian ad litem program and, as parens patriae,
to protect minors, Subsection (b) constitutes an exception to Rules of Professional Conduct, Rule
1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client privilege does not bar access to the
records of an attorney guardian ad litem by the Legislature, through legislative subpoena.
Section 4. Section 78-7-9 is amended to read:

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78-7-9. Appointment of attorney guardian ad litem in child abuse and neglect
proceedings.
(1) If child abuse, child sexual abuse, or neglect is alleged in any proceeding in any state
court, the court may upon its own motion or shall upon the motion of any party to the proceeding
appoint an attorney guardian ad litem to represent the best interest of the child, in accordance with
Sections 78-3a-911 and 78-3a-912.
(2) The court may appoint an attorney guardian ad litem, when it considers it necessary and
appropriate, to represent the best interest of the child in all related proceedings conducted in any state
court involving the alleged abuse, child sexual abuse, or neglect.
(3) The attorney guardian ad litem shall be appointed in accordance with and meet the
requirements of Sections 78-3a-911 and 78-3a-912.
(4) If an attorney guardian ad litem has been appointed for the child by any court in the state
in any prior proceeding or related matter, the court may continue that appointment or may reappoint
that attorney guardian ad litem, if still available, to act on behalf of the child.
(5) The court is responsible for all costs resulting from the appointment of an attorney
guardian ad litem and shall use funds appropriated by the Legislature for the guardian ad litem
program to cover those costs.
(6) [The court may assess the costs for recoupment in an action if a party is found
impecunious] If the court appoints a guardian ad litem attorney pursuant to this section or Section
78-3a-912, the court may assess all or part of those attorney's fees, court costs, paralegal, staff, and
volunteer expenses against the minor's parent or parents in an amount that the court determines to
be just and appropriate. The court may not assess those fees or costs against a parent who is found
to be impecunious.
(7) An attorney guardian ad litem appointed in accordance with the requirements of this
section and Sections 78-3a-911 and 78-3a-912 is, when serving in the scope of duties of an attorney
guardian ad litem, considered an employee of this state for purposes of indemnification under the
Governmental Immunity Act.
Section 5. Effective date.

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This act takes effect on July 1, 1997.

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