S.B. 117

1

GUARDIAN AD LITEM AMENDMENTS
2 2001 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Lyle W. Hillyard
5 This act modifies the Judicial Code by amending provisions related to guardians ad litem.
6 The act modifies the duties of the guardian ad litem director. The act gives the court
7 discretion to appoint a private attorney guardian ad litem in visitation and custody cases.
8 The act authorizes the courts to recover costs of guardians ad litem from defendants
9 convicted of crimes or from the parties in visitation and custody cases. The act provides
10 exceptions to recovery of costs for impecunious persons. The act defines the duties of private
11 attorney guardians ad litem and grants limited immunity to guardians ad litem. The act
12 provides an effective date.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 78-3a-911, as last amended by Chapter 13, Laws of Utah 1998
16 78-3a-912, as last amended by Chapter 194, Laws of Utah 1997
17 78-7-9, as last amended by Chapter 194, Laws of Utah 1997
18 ENACTS:
19 78-7-36, Utah Code Annotated 1953
20 Be it enacted by the Legislature of the state of Utah:
21 Section 1. Section 78-3a-911 is amended to read:
22 78-3a-911. Office of Guardian Ad Litem Director.
23 (1) There is hereby created the Office of Guardian Ad Litem Director under the direct
24 supervision of the Judicial Council in accordance with Subsection 78-3-21 (13).
25 (2) (a) The Judicial Council shall appoint one person to serve full time as the guardian ad
26 litem director for the state.
27 (b) The director shall be an attorney licensed to practice law in this state and selected on

28 the basis of:
29 (i) professional ability;
30 (ii) experience in abuse, neglect, and dependency proceedings;
31 (iii) familiarity with the role, purpose, and function of guardians ad litem in both juvenile
32 and district courts; and
33 (iv) ability to develop training curricula and reliable methods for data collection and
34 evaluation.
35 (c) The director shall be trained in the United States Department of Justice National Court
36 Appointed Special Advocate program prior to or immediately after his appointment.
37 (3) The guardian ad litem director shall:
38 (a) establish policy and procedure for the management of a statewide guardian ad litem
39 program;
40 (b) manage the guardian ad litem program to assure that minors receive qualified guardian
41 ad litem services in abuse, neglect, and dependency proceedings in accordance with state and
42 federal law and policy;
43 (c) develop standards for contracts of employment and contracts with independent
44 contractors, and employ or contract with attorneys licensed to practice law in this state, to act as
45 attorney guardians ad litem in accordance with Section 78-3a-912 ;
46 (d) develop and provide training programs for attorney guardians ad litem and volunteers
47 in accordance with the United States Department of Justice National Court Appointed Special
48 Advocates Association standards;
49 (e) update and develop the guardian ad litem manual, combining elements of the National
50 Court Appointed Special Advocates Association manual with specific information about the law
51 and policy of this state;
52 (f) develop and provide a library of materials for the continuing education of attorney
53 guardians ad litem and volunteers;
54 (g) educate court personnel regarding the role and function of guardians ad litem;
55 (h) develop needs assessment strategies, perform needs assessment surveys, and ensure
56 that guardian ad litem training programs correspond with actual and perceived needs for training;
57 (i) design and implement evaluation tools based on specific objectives targeted in the
58 needs assessments described in Subsection (3)(h); [and]

59 (j) prepare and submit an annual report to the Judicial Council and the Health and Human
60 Services Interim Committee regarding the development, policy, and management of the statewide
61 guardian ad litem program, and the training and evaluation of attorney guardians ad litem and
62 volunteers[.];
63 (k) hire, train, and supervise investigators; and
64 (l) administer the program of private guardians ad litem established by Section 78-7-36 .
65 (4) A contract of employment or independent contract described under Subsection (3)(c)
66 shall provide that attorney guardians ad litem in the second, third, and fourth judicial districts
67 devote their full time and attention to the role of attorney guardian ad litem, having no clients other
68 than the children whose interest they represent within the guardian ad litem program.
69 Section 2. Section 78-3a-912 is amended to read:
70 78-3a-912. Appointment of attorney guardian ad litem -- Duties and responsibilities
71 -- Training -- Trained staff and court appointed special advocate volunteers -- Costs --
72 Immunity.
73 (1) The court may appoint an attorney guardian ad litem to represent the best interest of
74 a minor involved in any case before the court and shall consider only the best interest of a minor
75 in determining whether to appoint a guardian ad litem.
76 (2) An attorney guardian ad litem shall represent the best interest of each minor who may
77 become the subject of a petition alleging abuse, neglect, or dependency, from the date the minor
78 is removed from his home by the Division of Child and Family Services, or the date the petition
79 is filed, whichever occurs earlier.
80 (3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad litem,
81 shall:
82 (a) represent the best interest of the minor in all proceedings;
83 (b) be trained in applicable statutory, regulatory, and case law, and in accordance with the
84 United States Department of Justice National Court Appointed Special Advocate Association
85 guidelines, prior to representing any minor before the court;
86 (c) conduct or supervise an independent investigation in order to obtain first-hand, a clear
87 understanding of the situation and needs of the child;
88 (d) personally or through a trained volunteer, paralegal, or other trained staff, determine
89 the extent of contact the minor or his family has had with the Division of Child and Family

90 Services;
91 (e) personally or through a trained volunteer, paralegal, or other trained staff, assess
92 whether kinship placements have been adequately explored and investigated by the Division of
93 Child and Family Services, and make recommendations to the court regarding the best interests
94 of a child in kinship placements;
95 (f) personally or through a trained volunteer, paralegal, or other trained staff, assess
96 whether there are alternatives to continued removal of the minor, including in-home services or
97 removal of the perpetrator;
98 (g) personally or through a trained volunteer, paralegal, or other trained staff, review the
99 Division of Child and Family Services' records regarding the minor and his family, and all other
100 necessary and relevant records pertaining to the minor, including medical, psychological, and
101 school records;
102 (h) personally meet with the minor, personally interview the minor if the minor is old
103 enough to communicate, determine the minor's goals and concerns regarding placement, and
104 personally assess or supervise an assessment of the appropriateness and safety of the minor's
105 environment in each placement;
106 (i) file written motions, responses, or objections at all stages of a proceeding when
107 necessary to protect the best interest of a minor;
108 (j) either personally or through a trained volunteer, paralegal, or other trained staff,
109 conduct interviews, if appropriate and permitted by the Rules of Professional Conduct, with the
110 minor's parents, foster parents, caseworkers, therapists, counselors, school personnel, mental health
111 professionals, where applicable and, if any injuries or abuse have occurred or are alleged, review
112 photographs, available video or audio tape of interviews with the minor, and contact appropriate
113 health care facilities and health care providers;
114 (k) either personally or through a trained volunteer, paralegal, or other trained staff,
115 identify appropriate community resources and advocate for those resources, when appropriate, to
116 protect the best interest of the minor;
117 (l) personally attend all court hearings, and participate in all telephone conferences with
118 the court unless the court waives that appearance or participation;
119 (m) personally or through a trained volunteer, paralegal, or other trained staff, attend all
120 administrative and foster care citizen review board hearings pertaining to the minor's case;

121 (n) prepare for hearings;
122 (o) present witnesses and exhibits when necessary to protect the best interest of the minor;
123 (p) participate in all appeals unless excused by order of the court;
124 (q) calculate the schedule for administrative or foster care citizen review board hearings
125 and other hearings required by state and federal law and regulation, and notify the Division of
126 Child and Family Services if those hearings are not held in accordance with those requirements;
127 (r) conduct interviews with potential witnesses and review relevant exhibits and reports;
128 (s) make clear and specific recommendations to the court concerning the best interest of
129 the minor at every stage of the proceeding, including all placement decisions, and ask that clear
130 and specific orders be entered for the provision of services, treatment provided, and for the
131 evaluation, assessment, and protection of the minor and his family;
132 (t) be familiar with local experts who can provide consultation and testimony regarding
133 the reasonableness and appropriateness of efforts made by the Division of Child and Family
134 Services to maintain a minor in his home or to reunify a minor with his parent;
135 (u) to the extent possible, and unless it would be detrimental to the minor, personally or
136 through a trained volunteer, paralegal, or other trained staff, keep the minor advised of the status
137 of his case, all court and administrative proceedings, discussions, and proposals made by other
138 parties, court action, and psychiatric, medical, or other treatment or diagnostic services that are to
139 be provided to the minor;
140 (v) review proposed orders for, and as requested by the court, prepare proposed orders with
141 clear and specific directions regarding services, treatment, and evaluation, assessment, and
142 protection of the minor and his family;
143 (w) personally or through a trained volunteer, paralegal, or other trained staff, monitor
144 implementation of a minor's treatment plan and any dispositional orders to determine whether
145 services ordered by the court are actually provided, are provided in a timely manner, and attempt
146 to assess whether they are accomplishing their intended goal; and
147 (x) inform the court promptly, orally or in writing, if:
148 (i) court-ordered services are not being made available to the minor and his family;
149 (ii) the minor's family fails to take advantage of court-ordered services;
150 (iii) court-ordered services are not achieving their purpose;
151 (iv) the division fails to hold administrative hearings or reviews as required by state and

152 federal law and regulation; or
153 (v) any violation of orders, new developments, or changes have occurred that justify a
154 review of the case.
155 (4) (a) An attorney guardian ad litem may use trained volunteers, in accordance with Title
156 67, Chapter 20, Volunteer Government Workers Act, trained paralegals, and other trained staff to
157 assist in investigation and preparation of information regarding the cases of individual minors
158 before the court. An attorney guardian ad litem may not, however, delegate his responsibilities
159 described in Subsection (3).
160 (b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained in
161 and follow, at a minimum, the guidelines established by the United States Department of Justice
162 Court Appointed Special Advocate Association.
163 (c) The court may use volunteers trained in accordance with the requirements of
164 Subsection (4)(b) to assist in investigation and preparation of information regarding the cases of
165 individual minors within the jurisdiction.
166 (d) When possible and appropriate, the court may use a volunteer who is a peer of the
167 minor appearing before the court, in order to provide assistance to that minor, under the
168 supervision of an attorney guardian ad litem or trained volunteer, paralegal, or other trained staff.
169 (5) The attorney guardian ad litem shall continue to represent the best interest of the minor
170 until released from his duties by the court.
171 (6) (a) The juvenile court is responsible for all costs resulting from the appointment of an
172 attorney guardian ad litem and the costs of volunteer, paralegal, and other staff appointment and
173 training, and shall use funds appropriated by the Legislature for the guardian ad litem program to
174 cover those costs.
175 (b) (i) When the court appoints an attorney guardian ad litem under this section [or Section
176 78-7-9 ], the court [may] shall assess all or part of the attorney's fees, court costs, and paralegal,
177 staff, and volunteer expenses against the minor's parents [or], parent, or legal guardian in a
178 proportion that the court determines to be just and appropriate.
179 (ii) The court may not assess those fees or costs against a parent who is found to be
180 impecunious. If a person claims to be impecunious, the court shall require of that person an
181 affidavit of impecuniosity as provided in Section 21-7-3 and the court shall follow the procedures
182 and make the determinations as provided in Section 21-7-4 .

183 (7) An attorney guardian ad litem appointed under this section, when serving in the scope
184 of his duties as guardian ad litem is considered an employee of the state for purposes of
185 indemnification under Title 63, Chapter 30, Utah Governmental Immunity Act.
186 (8) (a) An attorney guardian ad litem shall represent the best interest of a minor. If the
187 minor's wishes differ from the attorney's determination of the minor's best interest, the attorney
188 guardian ad litem shall communicate the minor's wishes to the court in addition to presenting his
189 determination of the minor's best interest. A difference between the minor's wishes and the
190 attorney's determination of best interest may not be considered a conflict of interest for the
191 attorney.
192 (b) The court may appoint one attorney guardian ad litem to represent the best interests of
193 more than one minor child of a marriage.
194 [(b)] (c) An attorney guardian ad litem shall formulate an independent position, after
195 considering all relevant evidence, in accordance with the requirements of Subsection (3). His
196 recommendations to the court shall be a result of his independent investigation.
197 (9) An attorney guardian ad litem shall be provided access to all Division of Child and
198 Family Services records regarding the minor at issue and his family.
199 (10) An attorney guardian ad litem shall maintain current and accurate records regarding
200 the number of times he has had contact with each minor and the actions he has taken in
201 representation of the minor's best interest.
202 (11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian ad
203 litem are confidential and may not be released or made public upon subpoena, search warrant,
204 discovery proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2, Government
205 Records Access and Management Act.
206 (b) All records of an attorney guardian ad litem are subject to legislative subpoena, under
207 Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the Legislature.
208 (c) Records released in accordance with Subsection (11)(b) shall be maintained as
209 confidential by the Legislature. The Office of the Legislative Auditor General may, however,
210 include summary data and nonidentifying information in its audits and reports to the Legislature.
211 (d) Because of the unique role of an attorney guardian ad litem described in Subsection
212 (8), and the state's role and responsibility to provide a guardian ad litem program and, as parens
213 patriae, to protect minors, Subsection (11)(b) constitutes an exception to Rules of Professional

214 Conduct, Rule 1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client privilege does not
215 bar access to the records of an attorney guardian ad litem by the Legislature, through legislative
216 subpoena.
217 Section 3. Section 78-7-9 is amended to read:
218 78-7-9. Appointment of attorney guardian ad litem in child abuse and neglect
219 proceedings.
220 (1) If child abuse, child sexual abuse, or neglect is alleged in any proceeding in any state
221 court, the court may upon its own motion or shall upon the motion of any party to the proceeding
222 appoint an attorney guardian ad litem to represent the best interest of the child, in accordance with
223 Sections 78-3a-911 and 78-3a-912 .
224 (2) The court may appoint an attorney guardian ad litem, when it considers it necessary
225 and appropriate, to represent the best interest of the child in all related proceedings conducted in
226 any state court involving the alleged abuse, child sexual abuse, or neglect.
227 (3) The attorney guardian ad litem shall be appointed in accordance with and meet the
228 requirements of Sections 78-3a-911 and 78-3a-912 .
229 (4) If an attorney guardian ad litem has been appointed for the child by any court in the
230 state in any prior proceeding or related matter, the court may continue that appointment or may
231 reappoint that attorney guardian ad litem, if still available, to act on behalf of the child.
232 (5) The court is responsible for all costs resulting from the appointment of an attorney
233 guardian ad litem and shall use funds appropriated by the Legislature for the guardian ad litem
234 program to cover those costs.
235 (6) (a) If the court appoints [a guardian ad litem attorney] the Office of the Guardian Ad
236 Litem in a civil case pursuant to this section [or Section 78-3a-912 ], the court [may] shall assess
237 all or part of those attorney's fees, court costs, paralegal, staff, and volunteer expenses against the
238 minor's parent [or], parents, or legal guardian in an amount that the court determines to be just and
239 appropriate.
240 (b) The court may not assess those fees or costs against a parent, parents, or legal guardian
241 who is found to be impecunious. If a person claims to be impecunious, the court shall require of
242 that person an affidavit of impecuniosity as provided in Section 21-7-3 and the court shall follow
243 the procedures and make the determinations as provided in Section 21-7-4 .
244 (c) If the court appoints the Office of the Guardian Ad Litem in a criminal case pursuant

245 to this section and if the defendant is convicted of a crime which includes child abuse or neglect,
246 the court shall include as part of the defendant's sentence all or part of the attorney's fees, court
247 costs, and paralegal, staff, and volunteer expenses of the Office of the Guardian Ad Litem.
248 (7) An attorney guardian ad litem appointed in accordance with the requirements of this
249 section and Sections 78-3a-911 and 78-3a-912 is, when serving in the scope of duties of an
250 attorney guardian ad litem, considered an employee of this state for purposes of indemnification
251 under the Governmental Immunity Act.
252 Section 4. Section 78-7-36 is enacted to read:
253 78-7-36. Private attorney guardian ad litem -- Appointment -- Costs and fees -- Duties
254 -- Conflicts of interest -- Pro bono obligation -- Indemnification -- Minimum qualifications.
255 (1) (a) The court may appoint a private attorney as guardian ad litem to represent the best
256 interests of the minor in any district court action in which the custody of or visitation with a minor
257 is at issue. The attorney guardian ad litem shall be certified by the Director of the Office of the
258 Guardian Ad Litem as having met the minimum qualifications for appointment, but shall not be
259 employed by or under contract with the Office of the Guardian Ad Litem.
260 (b) If an attorney guardian ad litem has been appointed for the minor in any prior or
261 concurrent action and that attorney guardian ad litem is available, the court shall appoint that
262 attorney guardian ad litem, unless good cause is shown why another attorney guardian ad litem
263 should be appointed.
264 (c) If, after appointment of the attorney guardian ad litem, an allegation of abuse or neglect
265 of the minor is made the court shall:
266 (i) determine whether it is in the best interests of the minor to continue the appointment;
267 or
268 (ii) order the withdrawal of the attorney guardian ad litem and appoint the Office of the
269 Guardian Ad Litem.
270 (2) (a) The court shall assess all or part of the attorney guardian ad litem fees, courts costs,
271 and paralegal, staff, and volunteer expenses against the parties in a proportion the court determines
272 to be just.
273 (b) If the court finds a party to be impecunious, under the provisions of Sections 21-7-3
274 and 21-7-4 , the court may direct the impecunious party's share of the assessment to be covered by
275 the attorney guardian ad litem pro bono obligation established in Subsection (6)(b).

276 (3) The attorney guardian ad litem appointed under the provisions of this section shall:
277 (a) represent the best interests of the minor from the date of the appointment until released
278 by the court;
279 (b) conduct or supervise an independent investigation in order to obtain a clear
280 understanding of the situation and needs of the minor;
281 (c) formulate an independent opinion of the best interests of the minor after considering
282 all relevant evidence and make recommendations to the court concerning the best interest of the
283 minor;
284 (d) interview witnesses and review relevant records pertaining to the minor and the minor's
285 family, including medical, psychological, and school records;
286 (e) if the minor is old enough to communicate and unless it would be detrimental to the
287 minor:
288 (i) meet with and interview the minor;
289 (ii) determine the minor's goals and concerns regarding custody or visitation; and
290 (iii) counsel the minor regarding the nature, purpose, status, and implications of the case,
291 of hearings, of recommendations, and proposals by parties and of court orders;
292 (f) conduct discovery, file pleadings and other papers, prepare and review orders, and
293 otherwise comply with the Utah Rules of Civil Procedure as necessary to protect the best interest
294 of the minor;
295 (g) unless excused by the court, prepare for and attend all mediation hearings and all court
296 conferences and hearings, and present witnesses and exhibits as necessary to protect the best
297 interests of the minor;
298 (h) identify community resources to protect the best interests of the minor and advocate
299 for those resources; and
300 (i) participate in all appeals unless excused by the court.
301 (4) (a) The attorney guardian ad litem shall represent the best interests of a minor. If the
302 minor's wishes differ from the attorney's determination of the minor's best interests, the attorney
303 guardian ad litem shall communicate to the court the minor's wishes and the attorney's
304 determination of the minor's best interests. A difference between the minor's wishes and the
305 attorney's determination of best interests is not sufficient to create a conflict of interest under the
306 Rules of Professional Conduct.

307 (b) The court may appoint one attorney guardian ad litem to represent the best interests of
308 more than one minor child of a marriage.
309 (5) An attorney guardian ad litem appointed under this section is immune from any civil
310 liability that might result by reason of acts performed within the scope of duties of the attorney
311 guardian ad litem.
312 (6) (a) Upon the advice of the Director of the Office of the Guardian Ad Litem, the Judicial
313 Council shall by rule establish the minimum qualifications and requirements for appointment by
314 the court as an attorney guardian ad litem.
315 (b) An attorney guardian ad litem may be required to appear pro bono in one case for every
316 five cases in which the attorney is appointed with compensation.
317 (7) This section shall be effective in the Second, Third, and Fourth Judicial Districts on
318 July 1, 2001, and in the remaining judicial districts of the state on July 1, 2002.




Legislative Review Note
as of 1-9-01 1:37 PM

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

Office of Legislative Research and General Counsel