H.B. 94

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GUARDIAN AD LITEM AMENDMENTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Steve Barth
5 AN ACT RELATING TO GUARDIANS AD LITEM; CREATING A RESTRICTED ACCOUNT
6 FOR RECRUITING, TRAINING, AND SUPERVISING CASA VOLUNTEERS;
7 PROVIDING FOR DONATION OF JUROR'S FEES TO THAT ACCOUNT; CREATING A
8 RESTRICTED ACCOUNT TO FUND THE OFFICE OF THE GUARDIAN AD LITEM
9 DIRECTOR; ALLOCATING A PERCENTAGE OF THE SURCHARGE TO THAT
10 ACCOUNT; CLARIFYING RESPONSIBILITIES OF ATTORNEY GUARDIANS AD
11 LITEM; PROVIDING FOR THE USE OF TRAINED PARALEGALS BY THE OFFICE OF
12 THE GUARDIAN AD LITEM DIRECTOR; AND PROVIDING AN EFFECTIVE DATE.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 21-5-4, as last amended by Chapter 219, Laws of Utah 1992
16 78-3a-912, as enacted by Chapter 1 and last amended by Chapter 318, Laws of Utah 1996
17 78-7-9, as last amended by Chapter 1, Laws of Utah 1996
18 ENACTS:
19 63-63a-8.5, Utah Code Annotated 1953
20 Be it enacted by the Legislature of the state of Utah:
21 Section 1. Section 21-5-4 is amended to read:
22 21-5-4. Fees and mileage.
23 (1) Every juror and witness legally required or in good faith requested to attend a trial
24 court of record or not of record or a grand jury is entitled to:
25 (a) $17 for each day in attendance; and
26 (b) if traveling more than 50 miles, $1 for each four miles in excess of 50 miles actually
27 and necessarily traveled in going only, regardless of county lines.

1 [(c)] (2) Persons in the custody of a penal institution upon conviction of a criminal offense
2 are not entitled to a witness fee.
3 [(2)] (3) A witness attending from outside the state in a civil case is allowed mileage at the
4 rate of 25 cents per mile and is taxed for the distance actually and necessarily traveled inside the
5 state in going only.
6 [(3)] (4) If the witness is attending from outside the state in a criminal case, the state shall
7 reimburse the witness under Section 77-21-3.
8 [(4)] (5) A prosecution witness or a witness subpoenaed by an indigent defendant attending
9 from outside the county but within the state may receive reimbursement for necessary lodging and
10 meal expenses under rule of the Judicial Council.
11 (6) There is created within the General Fund, a restricted account known as the CASA
12 Volunteer Account. A juror may donate the juror's fee to the CASA Volunteer Account in $17
13 increments. The Legislature shall annually appropriate money from the CASA Volunteer Account
14 to the Administrative Office of the Courts for the purpose of recruiting, training, and supervising
15 volunteers for the Court Appointed Special Advocate program established pursuant to Section
16 78-3a-912.
17 Section 2. Section 63-63a-8.5 is enacted to read:
18 63-63a-8.5. Guardian Ad Litem Services Account established -- Funding -- Uses.
19 There is created in the General Fund a restricted account known as the Guardian Ad Litem
20 Services Account, for the purpose of funding the Office of the Guardian Ad Litem Director, in
21 accordance with the provisions of Sections 78-3a-911 and 78-3a-912. The Division of Finance
22 shall allocate 4% of the collected surcharge established in Section 63-63a-1 to the Guardian Ad
23 Litem Services Account. That amount may not, however, exceed the amount appropriated by the
24 Legislature.
25 Section 3. Section 78-3a-912 is amended to read:
26 78-3a-912. Appointment of attorney guardian ad litem -- Duties and responsibilities
27 -- Training -- Court appointed special advocate volunteers -- Costs -- Immunity.
28 (1) The court may appoint an attorney guardian ad litem to represent the best interest of
29 a minor involved in any case before the court and shall consider only the best interest of a minor
30 in determining whether to appoint a guardian ad litem.
31 (2) An attorney guardian ad litem shall represent the best interest of each minor who may

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1 become the subject of a petition alleging abuse, neglect, or dependency, from the date the minor
2 is removed from his home by the Division of Child and Family Services, or the date the petition
3 is filed, whichever occurs earlier.
4 (3) [Each] The Office of the Guardian Ad Litem Director, through an attorney guardian
5 ad litem, shall:
6 (a) represent the best interest of the minor in all proceedings;
7 (b) be trained in applicable statutory, regulatory, and case law, and in accordance with the
8 United States Department of Justice National Court Appointed Special Advocate Association
9 guidelines, prior to representing any minor before the court;
10 (c) conduct [a thorough and] or supervise an independent investigation in order to obtain
11 first-hand, a clear understanding of the situation and needs of the child;
12 (d) personally or through a trained volunteer or paralegal, determine the extent of contact
13 the minor or his family has had with the Division of Child and Family Services;
14 (e) personally or through a trained volunteer[, determine whether there are relatives or
15 close family friends who would be appropriate and willing to take the minor] or paralegal, assess
16 whether kinship placements have been adequately explored and investigated by the Division of
17 Child and Family Services, and make recommendations to the court regarding the best interests
18 of a child in kinship placements;
19 (f) personally or through a trained volunteer[, determine] or paralegal, assess whether there
20 are alternatives to continued removal of the minor, including in-home services or removal of the
21 perpetrator;
22 (g) personally or through a trained volunteer or paralegal, review the Division of Child and
23 Family Services' records regarding the minor and his family, and all other necessary and relevant
24 records pertaining to the minor, including medical, psychological, and school records;
25 (h) personally meet with the minor, personally interview the minor if the minor is old
26 enough to communicate, determine the minor's goals and concerns regarding placement, and
27 personally assess or supervise an assessment of the appropriateness and safety of the minor's
28 environment in each placement;
29 (i) file written motions, responses, or objections at all stages of a proceeding when
30 necessary to protect the best interest of a minor;
31 (j) either personally or through a trained volunteer or paralegal, conduct interviews, if

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1 appropriate and permitted by the Rules of Professional Conduct, with the minor's parents, foster
2 parents, caseworkers, therapists, counselors, school personnel, mental health professionals, where
3 applicable and, if any injuries or abuse have occurred or are alleged, review photographs, available
4 video or audio tape of interviews with the minor, and contact appropriate health care facilities and
5 health care providers;
6 (k) either personally or through a trained volunteer or paralegal, identify appropriate
7 community resources and advocate for those resources, when appropriate, to protect the best
8 interest of the minor;
9 (l) personally attend all court hearings, and participate in all telephone conferences with
10 the court unless the court waives that appearance or participation;
11 (m) personally or through a trained volunteer or paralegal, attend all administrative and
12 foster care citizen review board hearings [and reviews] pertaining to the minor's case;
13 (n) prepare for hearings;
14 (o) present witnesses and exhibits when necessary to protect the best interest of the minor;
15 (p) participate in all appeals unless excused by order of the court;
16 (q) [insure that] calculate the schedule for administrative or foster care citizen review
17 board hearings and [periodic reviews are scheduled and held in accordance with the requirements
18 of] other hearings required by state and federal law and regulation, and notify the Division of Child
19 and Family Services if those hearings are not held in accordance with those requirements;
20 (r) conduct interviews with potential witnesses and review relevant exhibits and reports;
21 (s) make clear and specific recommendations to the court concerning the best interest of
22 the minor at every stage of the proceeding, including all placement decisions, and ask that clear
23 and specific orders be entered for the provision of services, treatment provided, and for the
24 evaluation, assessment, and protection of the minor and his family;
25 (t) be familiar with local experts who can provide consultation and testimony regarding
26 the reasonableness and appropriateness of efforts made by the Division of Child and Family
27 Services to maintain a minor in his home or to reunify a minor with his parent;
28 (u) to the extent possible, and unless it would be detrimental to the minor, personally or
29 through a trained volunteer or paralegal, keep the minor advised of the status of his case, all court
30 and administrative proceedings, discussions, and proposals made by other parties, court action, and
31 psychiatric, medical, or other treatment or diagnostic services that are to be provided to the minor;

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1 (v) [insure that clear and specific orders are entered for the provision of services, treatment
2 provided, and for the] review proposed orders for, and as requested by the court, prepare proposed
3 orders with clear and specific directions regarding services, treatment, and evaluation, assessment,
4 and protection of the minor and his family;
5 (w) personally or through a trained volunteer or paralegal, monitor implementation of a
6 minor's treatment plan and any dispositional orders to determine whether services ordered by the
7 court are actually provided, are provided in a timely manner, and attempt to assess whether they
8 are accomplishing their intended goal; and
9 (x) inform the court promptly, orally or in writing, if:
10 (i) court-ordered services are not being made available to the minor and his family;
11 (ii) the minor's family fails to take advantage of court-ordered services;
12 (iii) court-ordered services are not achieving their purpose;
13 (iv) the division fails to hold administrative hearings or reviews as required by state and
14 federal law and regulation; or
15 (v) any violation of orders, new developments, or changes have occurred that justify a
16 review of the case.
17 (4) (a) An attorney guardian ad litem may [utilize] use trained volunteers, in accordance
18 with Title 67, Chapter 20, Volunteer Government Workers Act, and trained paralegals to assist in
19 investigation and preparation of information regarding the cases of individual minors before the
20 court. An attorney guardian ad litem may not, however, delegate his responsibilities described in
21 Subsection (3).
22 (b) All volunteers and paralegals shall be trained in and follow, at a minimum, the
23 guidelines established by the United States Department of Justice Court Appointed Special
24 Advocate Association.
25 (c) The court may [utilize] use volunteers trained in accordance with the requirements of
26 Subsection (b) to assist in investigation and preparation of information regarding the cases of
27 individual minors within the jurisdiction.
28 (d) When possible and appropriate, the court may use a volunteer who is a peer of the
29 minor appearing before the court, in order to provide assistance to that minor, under the
30 supervision of an attorney guardian ad litem or trained volunteer or paralegal.
31 (5) The attorney guardian ad litem shall continue to represent the best interest of the minor

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1 until released from his duties by the court.
2 (6) (a) The juvenile court is responsible for all costs resulting from the appointment of an
3 attorney guardian ad litem and the costs of volunteer and paralegal appointment and training, and
4 shall use funds appropriated by the Legislature for the guardian ad litem program to cover those
5 costs.
6 (b) When the court appoints an attorney guardian ad litem under this section or Section
7 78-7-9, the court may assess all or part of the attorney's fees, court costs, and paralegal and
8 volunteer expenses against the minor's parents or parent in a proportion that the court determines
9 to be just and appropriate. The court may not assess those fees or costs against a parent who is
10 found to be impecunious.
11 (7) An attorney guardian ad litem appointed under this section, when serving in the scope
12 of his duties as guardian ad litem is considered an employee of the state for purposes of
13 indemnification under Title 63, Chapter 30, Utah Governmental Immunity Act.
14 (8) (a) An attorney guardian ad litem shall represent the best interest of a minor. If the
15 minor's wishes differ from the attorney's determination of the minor's best interest, the attorney
16 guardian ad litem shall communicate the minor's wishes to the court in addition to presenting his
17 determination of the minor's best interest. A difference between the minor's wishes and the
18 attorney's determination of best interest may not be considered a conflict of interest for the
19 attorney.
20 (b) An attorney guardian ad litem [is responsible to] shall formulate an independent
21 position, after considering all relevant evidence, in accordance with the requirements of Subsection
22 (3). His recommendations to the court shall be a result of his independent investigation.
23 (9) An attorney guardian ad litem shall be provided access to all Division of Child and
24 Family Services records regarding the minor at issue and his family.
25 (10) An attorney guardian ad litem shall maintain current and accurate records regarding
26 the number of times he has had contact with each minor and the actions he has taken in
27 representation of the minor's best interest.
28 (11) (a) Except as provided in Subsection (b), all records of an attorney guardian ad litem
29 are confidential and may not be released or made public upon subpoena, search warrant, discovery
30 proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2, Government Records
31 Access and Management Act.

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1 (b) All records of an attorney guardian ad litem are subject to legislative subpoena, under
2 Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the Legislature.
3 (c) Records released in accordance with Subsection (b) shall be maintained as confidential
4 by the Legislature. The Office of the Legislative Auditor General may, however, include summary
5 data and nonidentifying information in its audits and reports to the Legislature.
6 (d) Because of the unique role of an attorney guardian ad litem described in Subsection
7 (8), and the state's role and responsibility to provide a guardian ad litem program and, as parens
8 patriae, to protect minors, Subsection (b) constitutes an exception to Rules of Professional
9 Conduct, Rule 1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client privilege does not
10 bar access to the records of an attorney guardian ad litem by the Legislature, through legislative
11 subpoena.
12 Section 4. Section 78-7-9 is amended to read:
13 78-7-9. Appointment of attorney guardian ad litem in child abuse and neglect
14 proceedings.
15 (1) If child abuse, child sexual abuse, or neglect is alleged in any proceeding in any state
16 court, the court may upon its own motion or shall upon the motion of any party to the proceeding
17 appoint an attorney guardian ad litem to represent the best interest of the child, in accordance with
18 Sections 78-3a-911 and 78-3a-912.
19 (2) The court may appoint an attorney guardian ad litem, when it considers it necessary
20 and appropriate, to represent the best interest of the child in all related proceedings conducted in
21 any state court involving the alleged abuse, child sexual abuse, or neglect.
22 (3) The attorney guardian ad litem shall be appointed in accordance with and meet the
23 requirements of Sections 78-3a-911 and 78-3a-912.
24 (4) If an attorney guardian ad litem has been appointed for the child by any court in the
25 state in any prior proceeding or related matter, the court may continue that appointment or may
26 reappoint that attorney guardian ad litem, if still available, to act on behalf of the child.
27 (5) The court is responsible for all costs resulting from the appointment of an attorney
28 guardian ad litem and shall use funds appropriated by the Legislature for the guardian ad litem
29 program to cover those costs.
30 (6) [The court may assess the costs for recoupment in an action if a party is found
31 impecunious] If the court appoints a guardian ad litem attorney pursuant to this section or Section

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1 78-3a-912, the court may assess all or part of those attorney's fees, court costs, and paralegal and
2 volunteer expenses against the minor's parent or parents in an amount that the court determines to
3 be just and appropriate. The court may not assess those fees or costs against a parent who is found
4 to be impecunious.
5 (7) An attorney guardian ad litem appointed in accordance with the requirements of this
6 section and Sections 78-3a-911 and 78-3a-912 is, when serving in the scope of duties of an
7 attorney guardian ad litem, considered an employee of this state for purposes of indemnification
8 under the Governmental Immunity Act.
9 Section 5. Effective date.
10 This act takes effect on July 1, 1997.




Legislative Review Note
as of 1-24-97 12:50 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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