Second Substitute H.B. 174

Representative LaVar Christensen proposes the following substitute bill:

1 GUARDIAN AD LITEM AMENDMENTS
2 2006 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: LaVar Christensen
5 Senate Sponsor: D. Chris Buttars
6
7 LONG TITLE
8 General Description:
9 This bill transfers oversight of the Office of Guardian Ad Litem Director to the
10 Commission on Criminal and Juvenile Justice and amends the Judicial Code and
11 related provisions regarding the Office of Guardian Ad Litem Director and guardians ad
12 litem.
13 Highlighted Provisions:
14 This bill:
15 . defines terms;
16 . transfers oversight of the Office of Guardian Ad Litem Director, and rulemaking
17 authority relating to guardians ad litem, from the Judicial Council to the
18 Commission on Criminal and Juvenile Justice;
19 . amends the Juvenile Court Act of 1996 by narrowing and modifying the authority of
20 a court to appoint a guardian ad litem;
21 . modifies the qualifications and duties of the guardian ad litem director;
22 . requires the Commission on Criminal and Juvenile Justice to:
23 . annually conduct a performance evaluation of the guardian ad litem director;
24 and
25 . establish a procedure to receive and resolve complaints regarding the guardian

26 ad litem director, the Office of Guardian Ad Litem Director, or attorney guardians ad litem;
27 . modifies the duties of guardians ad litem and the Office of Guardian Ad Litem
28 Director;
29 . requires that, during the 2007 interim, the Health and Human Services Interim
30 Committee shall:
31 . consider a report from the guardian ad litem director regarding changes and
32 improvements made in response to the February 2005 performance audit and
33 recommendations for other legislative changes relating to guardians ad litem;
34 and
35 . conduct a study to determine whether the Office of Guardian Ad Litem Director
36 should be reauthorized or replaced with a system consisting solely of private
37 guardians ad litem;
38 . requires the Health and Human Services Interim Committee to, during the 2006
39 interim, review the duties of guardians ad litem and determine whether the duties
40 should be modified;
41 . removes obsolete language relating to a pilot program and to public access to
42 hearings and records for abuse, neglect, and dependency cases;
43 . describes the circumstances under which fees and costs, incurred by the Office of
44 Guardian Ad Litem Director in a criminal case, may be recovered from a defendant
45 convicted of a crime committed against a child for whom the Office of Guardian Ad
46 Litem Director is appointed; and
47 . makes technical changes.
48 Monies Appropriated in this Bill:
49 None
50 Other Special Clauses:
51 None
52 Utah Code Sections Affected:
53 AMENDS:
54 63-25a-104, as last amended by Chapter 220, Laws of Utah 2001
55 78-3-21, as last amended by Chapters 51 and 332, Laws of Utah 2003
56 78-3a-112, as renumbered and amended by Chapter 365, Laws of Utah 1997

57 78-3a-115, as last amended by Chapters 324 and 356, Laws of Utah 2004
58 78-3a-115.1, as last amended by Chapter 324, Laws of Utah 2004
59 78-3a-116, as last amended by Chapters 190 and 324, Laws of Utah 2004
60 78-3a-911, as last amended by Chapter 94, Laws of Utah 2003
61 78-3a-912, as last amended by Chapters 102, 286 and 304, Laws of Utah 2005
62 78-7-45, as last amended by Chapter 168, Laws of Utah 2002
63
64 Be it enacted by the Legislature of the state of Utah:
65 Section 1. Section 63-25a-104 is amended to read:
66 63-25a-104. Duties of commission.
67 The state commission on criminal and juvenile justice administration shall:
68 (1) promote the commission's purposes as enumerated in Section 63-25a-101 ;
69 (2) promote the communication and coordination of all criminal and juvenile justice
70 agencies;
71 (3) study, evaluate, and report on the status of crime in the state and on the
72 effectiveness of criminal justice policies, procedures, and programs that are directed toward the
73 reduction of crime in the state;
74 (4) study, evaluate, and report on policies, procedures, and programs of other
75 jurisdictions which have effectively reduced crime;
76 (5) identify and promote the implementation of specific policies and programs the
77 commission determines will significantly reduce crime in Utah;
78 (6) provide analysis and recommendations on all criminal and juvenile justice
79 legislation, state budget, and facility requests, including program and fiscal impact on all
80 components of the criminal and juvenile justice system;
81 (7) provide analysis, accountability, recommendations, and supervision for state and
82 federal criminal justice grant monies;
83 (8) provide public information on the criminal and juvenile justice system and give
84 technical assistance to agencies or local units of government on methods to promote public
85 awareness;
86 (9) promote research and program evaluation as an integral part of the criminal and
87 juvenile justice system;

88 (10) provide a comprehensive criminal justice plan annually;
89 (11) review agency forecasts regarding future demands on the criminal and juvenile
90 justice systems, including specific projections for secure bed space; [and]
91 (12) promote the development of criminal and juvenile justice information systems that
92 are consistent with common standards for data storage and are capable of appropriately sharing
93 information with other criminal justice information systems by:
94 (a) developing and maintaining common data standards for use by all state criminal
95 justice agencies;
96 (b) annually performing audits of criminal history record information maintained by
97 state criminal justice agencies to assess their accuracy, completeness, and adherence to
98 standards;
99 (c) defining and developing state and local programs and projects associated with the
100 improvement of information management for law enforcement and the administration of
101 justice; and
102 (d) establishing general policies concerning criminal and juvenile justice information
103 systems and making rules as necessary to carry out the duties under Subsection (10) and this
104 Subsection (12) [and Subsection (10).]; and
105 (13) supervise the Office of Guardian Ad Litem Director, in accordance with the
106 provisions of Sections 78-3a-911 and 78-3a-912 , and assure compliance of the guardian ad
107 litem program with state and federal law, regulation, policy, and court rules.
108 Section 2. Section 78-3-21 is amended to read:
109 78-3-21. Judicial Council -- Creation -- Members -- Terms and election --
110 Responsibilities -- Reports.
111 (1) The Judicial Council, established by Article VIII, Section 12, Utah Constitution,
112 shall be composed of:
113 (a) the chief justice of the Supreme Court;
114 (b) one member elected by the justices of the Supreme Court;
115 (c) one member elected by the judges of the Court of Appeals;
116 (d) five members elected by the judges of the district courts;
117 (e) two members elected by the judges of the juvenile courts;
118 (f) three members elected by the justice court judges; and

119 (g) a member or ex officio member of the Board of Commissioners of the Utah State
120 Bar who is an active member of the Bar in good standing elected by the Board of
121 Commissioners.
122 (2) (a) The chief justice of the Supreme Court shall act as presiding officer of the
123 council and chief administrative officer for the courts. The chief justice shall vote only in the
124 case of a tie.
125 (b) All members of the council shall serve for three-year terms. If a council member
126 should die, resign, retire, or otherwise fail to complete a term of office, the appropriate
127 constituent group shall elect a member to complete the term of office. In courts having more
128 than one member, the members shall be elected to staggered terms. The person elected to the
129 Judicial Council by the Board of Commissioners shall be a member or ex officio member of
130 the Board of Commissioners and an active member of the Bar in good standing at the time the
131 person is elected. The person may complete a three-year term of office on the Judicial Council
132 even though the person ceases to be a member or ex officio member of the Board of
133 Commissioners. The person shall be an active member of the Bar in good standing for the
134 entire term of the Judicial Council.
135 (c) Elections shall be held under rules made by the Judicial Council.
136 (3) The council is responsible for the development of uniform administrative policy for
137 the courts throughout the state. The presiding officer of the Judicial Council is responsible for
138 the implementation of the policies developed by the council and for the general management of
139 the courts, with the aid of the administrator. The council has authority and responsibility to:
140 (a) establish and assure compliance with policies for the operation of the courts,
141 including uniform rules and forms; and
142 (b) publish and submit to the governor, the chief justice of the Supreme Court, and the
143 Legislature an annual report of the operations of the courts, which shall include financial and
144 statistical data and may include suggestions and recommendations for legislation.
145 (4) (a) The Judicial Council shall make rules establishing:
146 (i) standards for judicial competence; and
147 (ii) a formal program for the evaluation of judicial performance containing the
148 elements of and meeting the requirements of this Subsection (4).
149 (b) The Judicial Council shall ensure that the formal judicial performance evaluation

150 program has improvement in the performance of individual judges, court commissioners, and
151 the judiciary as its goal.
152 (c) The Judicial Council shall ensure that the formal judicial performance evaluation
153 program includes at least all of the following elements:
154 (i) a requirement that judges complete a certain number of hours of approved judicial
155 education each year;
156 (ii) a requirement that each judge certify that he is:
157 (A) physically and mentally competent to serve; and
158 (B) in compliance with the Codes of Judicial Conduct and Judicial Administration; and
159 (iii) a requirement that the judge receive a satisfactory score on questions identified by
160 the Judicial Council as relating to judicial certification on a survey of members of the Bar
161 developed by the Judicial Council in conjunction with the American Bar Association.
162 (d) The Judicial Council shall ensure that the formal judicial performance evaluation
163 program considers at least the following criteria:
164 (i) integrity;
165 (ii) knowledge;
166 (iii) understanding of the law;
167 (iv) ability to communicate;
168 (v) punctuality;
169 (vi) preparation;
170 (vii) attentiveness;
171 (viii) dignity;
172 (ix) control over proceedings; and
173 (x) skills as a manager.
174 (e) (i) The Judicial Council shall provide the judicial performance evaluation
175 information and the disciplinary data required by Subsection 20A-7-702 (2) to the Lieutenant
176 Governor for publication in the voter information pamphlet.
177 (ii) Not later than August 1 of the year before the expiration of the term of office of a
178 justice court judge, the Judicial Council shall provide the judicial performance evaluation
179 information required by Subsection 20A-7-702 (2) to the appointing authority of a justice court
180 judge.

181 (5) The council shall establish standards for the operation of the courts of the state
182 including, but not limited to, facilities, court security, support services, and staff levels for
183 judicial and support personnel.
184 (6) The council shall by rule establish the time and manner for destroying court
185 records, including computer records, and shall establish retention periods for these records.
186 (7) (a) Consistent with the requirements of judicial office and security policies, the
187 council shall establish procedures to govern the assignment of state vehicles to public officers
188 of the judicial branch.
189 (b) The vehicles shall be marked in a manner consistent with Section 41-1a-407 and
190 may be assigned for unlimited use, within the state only.
191 (8) (a) The council shall advise judicial officers and employees concerning ethical
192 issues and shall establish procedures for issuing informal and formal advisory opinions on
193 these issues.
194 (b) Compliance with an informal opinion is evidence of good faith compliance with the
195 Code of Judicial Conduct.
196 (c) A formal opinion constitutes a binding interpretation of the Code of Judicial
197 Conduct.
198 (9) (a) The council shall establish written procedures authorizing the presiding officer
199 of the council to appoint judges of courts of record by special or general assignment to serve
200 temporarily in another level of court in a specific court or generally within that level. The
201 appointment shall be for a specific period and shall be reported to the council.
202 (b) These procedures shall be developed in accordance with Subsection 78-3-24 (10)
203 regarding temporary appointment of judges.
204 (10) The Judicial Council may by rule designate municipalities in addition to those
205 designated by statute as a location of a trial court of record. There shall be at least one court
206 clerk's office open during regular court hours in each county. Any trial court of record may
207 hold court in any municipality designated as a location of a court of record. Designations by
208 the Judicial Council may not be made between July 1, 1997, and July 1, 1998.
209 (11) The Judicial Council shall by rule determine whether the administration of a court
210 shall be the obligation of the administrative office of the courts or whether the administrative
211 office of the courts should contract with local government for court support services.

212 (12) The Judicial Council may by rule direct that a district court location be
213 administered from another court location within the county.
214 [(13) The Judicial Council shall establish and supervise the Office of Guardian Ad
215 Litem Director, in accordance with the provisions of Sections 78-3a-911 and 78-3a-912 , and
216 assure compliance of the guardian ad litem program with state and federal law, regulation, and
217 policy, and court rules.]
218 [(14)] (13) The Judicial Council shall establish and maintain, in cooperation with the
219 Office of Recovery Services within the Department of Human Services, the part of the state
220 case registry that contains records of each support order established or modified in the state on
221 or after October 1, 1998, as is necessary to comply with the Social Security Act, 42 U.S.C. Sec.
222 654a.
223 [(15) (a) On or before November 1, 2003, the Judicial Council, by rule, shall select one
224 or more districts as pilot districts for purposes of Sections 78-3a-115 , 78-3a-115.1 , and
225 78-3a-116 .]
226 [(b) Prior to the 2005 Annual General Session, the Judicial Council shall report to the
227 Child Welfare Legislative Oversight Panel and the Judiciary Interim Committee on the effects
228 of Chapter 332, Laws of Utah 2003 and recommend whether the provisions of Chapter 332,
229 Laws of Utah 2003 should be continued, modified, or repealed.]
230 Section 3. Section 78-3a-112 is amended to read:
231 78-3a-112. Appearances -- Parents to appear with minor -- Failure to appear --
232 Contempt -- Warrant of arrest, when authorized -- Parent's employer to grant time off --
233 Appointment of guardian ad litem.
234 (1) Any person required to appear who, without reasonable cause, fails to appear may
235 be proceeded against for contempt of court, and the court may cause a bench warrant to issue to
236 produce the person in court.
237 (2) In all cases when a minor is required to appear in court, the parents, guardian, or
238 other person with legal custody of the minor shall appear with the minor unless excused by the
239 judge.
240 (a) An employee may request permission to leave the workplace for the purpose of
241 attending court if the employee has been notified by the juvenile court that his minor is
242 required to appear before the court.

243 (b) An employer must grant permission to leave the workplace with or without pay if
244 the employee has requested permission at least seven days in advance or within 24 hours of the
245 employee receiving notice of the hearing.
246 (3) If a parent or other person who signed a written promise to appear and bring the
247 minor to court under Section 78-3a-113 or 78-3a-114 , fails to appear and bring the minor to
248 court on the date set in the promise, or, if the date was to be set, after notification by the court,
249 a warrant may be issued for the apprehension of that person or the minor, or both.
250 (4) Willful failure to perform the promise is a misdemeanor if, at the time of the
251 execution of the promise, the promisor is given a copy of the promise which clearly states that
252 failure to appear and have the minor appear as promised is a misdemeanor. The juvenile court
253 shall have jurisdiction to proceed against the promisor in adult proceedings pursuant to Part 8,
254 Adult Offenses.
255 (5) The court shall endeavor, through use of the warrant of arrest if necessary, as
256 provided in Subsection (6), or by other means, to ensure the presence at all hearings of one or
257 both parents or of the guardian of the minor. If neither a parent nor guardian is present at the
258 court proceedings, the court may appoint a guardian ad litem to protect the interest of the
259 minor. [A guardian ad litem may also be appointed whenever necessary for the welfare of the
260 minor, whether or not a parent or guardian is present.]
261 (6) A warrant may be issued for the parent, the guardian, the custodian, or the minor if:
262 (a) a summons is issued but cannot be served;
263 (b) it is made to appear to the court that the person to be served will not obey the
264 summons;
265 (c) serving the summons will be ineffectual; or
266 (d) the welfare of the minor requires that he be brought immediately into the custody of
267 the court.
268 Section 4. Section 78-3a-115 is amended to read:
269 78-3a-115. Hearings -- Public excluded, exceptions -- Victims admitted -- Minor's
270 cases heard separately from adult cases -- Minor or parents or custodian heard
271 separately -- Continuance of hearing -- Consolidation of proceedings involving more than
272 one minor.
273 (1) (a) Hearings in minor's cases shall be held before the court without a jury and may

274 be conducted in an informal manner.
275 [(a) In abuse, neglect, and dependency cases in all districts other than pilot districts
276 selected by the Judicial Council under Subsection 78-3-21 (15)(a), the court shall exclude the
277 general public from hearings held prior to July 1, 2004.]
278 (b) In delinquency cases the court shall admit all persons who have a direct interest in
279 the case and may admit persons requested by the parent or legal guardian to be present. The
280 court shall exclude all other persons except as provided in Subsection (1)(c).
281 (c) In delinquency cases in which the minor charged is 14 years of age or older, the
282 court shall admit any person unless the hearing is closed by the court upon findings on the
283 record for good cause if:
284 (i) the minor has been charged with an offense which would be a felony if committed
285 by an adult; or
286 (ii) the minor is charged with an offense that would be a class A or B misdemeanor if
287 committed by an adult, and the minor has been previously charged with an offense which
288 would be a misdemeanor or felony if committed by an adult.
289 (d) The victim of any act charged in a petition or information involving an offense
290 committed by a minor which if committed by an adult would be a felony or a class A or class B
291 misdemeanor shall, upon request, be afforded all rights afforded victims in Title 77, Chapter
292 36, Cohabitant Abuse Procedures Act, Title 77, Chapter 37, Victims' Rights, and Title 77,
293 Chapter 38, Rights of Crime Victims Act. The notice provisions in Section 77-38-3 do not
294 apply to important juvenile justice hearings as defined in Section 77-38-2 .
295 (e) A victim, upon request to appropriate juvenile court personnel, shall have the right
296 to inspect and duplicate juvenile court legal records that have not been expunged concerning:
297 (i) the scheduling of any court hearings on the petition;
298 (ii) any findings made by the court; and
299 (iii) any sentence or decree imposed by the court.
300 (2) Minor's cases shall be heard separately from adult cases. The minor or the minor's
301 parents or custodian may be heard separately when considered necessary by the court. The
302 hearing may be continued from time to time to a date specified by court order.
303 (3) When more than one minor is involved in a home situation which may be found to
304 constitute neglect or dependency, or when more than one minor is alleged to be involved in the

305 same law violation, the proceedings may be consolidated, except that separate hearings may be
306 held with respect to disposition.
307 Section 5. Section 78-3a-115.1 is amended to read:
308 78-3a-115.1. Access to abuse, neglect, and dependency hearings.
309 [(1) This section applies:]
310 [(a) beginning November 1, 2003, to districts selected by the Judicial Council as pilot
311 districts under Subsection 78-3-21 (15)(a); and]
312 [(b) beginning July 1, 2004, to all other districts.]
313 [(2) (a)] (1) In abuse, neglect, and dependency cases the court shall admit any person to
314 a hearing, including a hearing under Subsection 78-3a-320 (3), unless the court makes a finding
315 upon the record that the person's presence at the hearing would:
316 [(i)] (a) be detrimental to the best interest of a child who is a party to the proceeding;
317 [(ii)] (b) impair the fact-finding process; or
318 [(iii)] (c) be otherwise contrary to the interests of justice.
319 [(b)] (2) The court may exclude a person from a hearing under Subsection [(2)(a)] (1)
320 on its own motion or by motion of a party to the proceeding.
321 Section 6. Section 78-3a-116 is amended to read:
322 78-3a-116. Hearings -- Record -- County attorney or district attorney
323 responsibilities -- Attorney general responsibilities -- Disclosure -- Admissibility of
324 evidence.
325 (1) (a) A verbatim record of the proceedings shall be taken by an official court reporter
326 or by means of a mechanical recording device in all cases that might result in deprivation of
327 custody as defined in this chapter. In all other cases a verbatim record shall also be made
328 unless dispensed with by the court.
329 (b) (i) Notwithstanding any other provision, including Title 63, Chapter 2, Government
330 Records Access and Management Act, a record of a proceeding made under Subsection (1)(a)
331 shall be released by the court to any person upon a finding on the record for good cause.
332 (ii) Following a petition for a record of a proceeding made under Subsection (1)(a), the
333 court shall:
334 (A) provide notice to all subjects of the record that a request for release of the record
335 has been made; and

336 (B) allow sufficient time for the subjects of the record to respond before making a
337 finding on the petition.
338 (iii) A record of a proceeding may not be released under this Subsection (1)(b) if the
339 court's jurisdiction over the subjects of the proceeding ended more than 12 months prior to the
340 request.
341 (iv) For purposes of this Subsection (1)(b):
342 (A) "record of a proceeding" does not include documentary materials of any type
343 submitted to the court as part of the proceeding, including items submitted under Subsection
344 (4)(a); and
345 (B) "subjects of the record" includes the child's guardian ad litem, the child's legal
346 guardian, the Division of Child and Family Services, and any other party to the proceeding.
347 (v) This Subsection (1)(b) applies:
348 (A) to records of proceedings made on or after November 1, 2003 in districts selected
349 by the Judicial Council as pilot districts under [Subsection 78-3-21 (15)(a)] Chapter 332,
350 Section 1, Laws of Utah 2003; and
351 (B) to records of proceedings made on or after July 1, 2004 in all other districts.
352 (2) (a) Except as provided in Subsection (2)(b), the county attorney or, if within a
353 prosecution district, the district attorney shall represent the state in any proceeding in a minor's
354 case.
355 (b) The attorney general shall enforce all provisions of Title 62A, Chapter 4a, Child
356 and Family Services, and Title 78, Chapter 3a, Juvenile [Courts] Court Act of 1996, relating to:
357 (i) protection or custody of an abused, neglected, or dependent child; and
358 (ii) petitions for termination of parental rights.
359 (c) The attorney general shall represent the Division of Child and Family Services in
360 actions involving minors who have not been adjudicated as abused or neglected, but who are
361 otherwise committed to the custody of that division by the juvenile court, and who are
362 classified in the division's management information system as having been placed in custody
363 primarily on the basis of delinquent behavior or a status offense. Nothing in this Subsection
364 (2)(c) may be construed to affect the responsibility of the county attorney or district attorney to
365 represent the state in those matters, in accordance with the provisions of Subsection (2)(a).
366 (3) The board may adopt special rules of procedure to govern proceedings involving

367 violations of traffic laws or ordinances, fish and game laws, and boating laws. However,
368 proceedings involving offenses under Section 78-3a-506 are governed by that section regarding
369 suspension of driving privileges.
370 (4) (a) For the purposes of determining proper disposition of the minor in dispositional
371 hearings and establishing the fact of abuse, neglect, or dependency in adjudication hearings and
372 in hearings upon petitions for termination of parental rights, written reports and other material
373 relating to the minor's mental, physical, and social history and condition may be received in
374 evidence and may be considered by the court along with other evidence. The court may require
375 that the person who wrote the report or prepared the material appear as a witness if the person
376 is reasonably available.
377 (b) For the purpose of determining proper disposition of a minor alleged to be or
378 adjudicated as abused, neglected, or dependent, dispositional reports prepared by Foster Care
379 Citizen Review Boards pursuant to Section 78-3g-103 may be received in evidence and may be
380 considered by the court along with other evidence. The court may require any person who
381 participated in preparing the dispositional report to appear as a witness, if the person is
382 reasonably available.
383 (5) (a) In an abuse, neglect, or dependency proceeding occurring after the
384 commencement of a shelter hearing under Section 78-3a-306 or the filing of a petition under
385 Section 78-3a-305 , each party to the proceeding shall provide in writing to the other parties or
386 their counsel any information which the party:
387 (i) plans to report to the court at the proceeding; or
388 (ii) could reasonably expect would be requested of the party by the court at the
389 proceeding.
390 (b) The disclosure required under Subsection (5)(a) shall be made:
391 (i) for dispositional hearings under Sections 78-3a-310 and 78-3a-311 , no less than five
392 days before the proceeding;
393 (ii) for proceedings under Title 78, Chapter 3a, Part 4, Termination of Parental Rights
394 Act, in accordance with Utah Rules of Civil Procedure; and
395 (iii) for all other proceedings, no less than five days before the proceeding.
396 (c) If a party to a proceeding obtains information after the deadline in Subsection
397 (5)(b), the information is exempt from the disclosure required under Subsection (5)(a) if the

398 party certifies to the court that the information was obtained after the deadline.
399 (d) Subsection (5)(a) does not apply to:
400 (i) pretrial hearings; and
401 (ii) the frequent, periodic review hearings held in a dependency drug court case to
402 assess and promote the parent's progress in substance abuse treatment.
403 (6) For the purpose of establishing the fact of abuse, neglect, or dependency, the court
404 may, in its discretion, consider evidence of statements made by a minor under eight years of
405 age to a person in a trust relationship.
406 Section 7. Section 78-3a-911 is amended to read:
407 78-3a-911. Office of Guardian Ad Litem Director -- Appointment of director --
408 Duties of director -- Contracts in second, third, and fourth districts.
409 (1) As used in this section, "commission" means the Commission on Criminal and
410 Juvenile Justice, created in Section 63-25a-101 .
411 [(1)] (2) There is hereby created the Office of Guardian Ad Litem Director under the
412 direct supervision of the [Judicial Council ] commission in accordance with Subsection
413 [ 78-3-21 ] 63-25a-104 (13).
414 [(2)] (3) (a) The [Judicial Council] commission shall appoint one person to serve full
415 time as the guardian ad litem director for the state. The guardian ad litem director shall serve at
416 the pleasure of the [Judicial Council] commission.
417 (b) The director shall be an attorney licensed to practice law in this state and selected
418 on the basis of:
419 (i) professional ability;
420 (ii) experience in abuse, neglect, and dependency proceedings;
421 (iii) familiarity with the role, purpose, and function of guardians ad litem in both
422 juvenile and district courts; [and]
423 (iv) ability to develop training curricula and reliable methods for data collection and
424 evaluation[.]; and
425 (v) ability to fulfill the duties of the guardian ad litem director.
426 (c) The director shall be trained in the United States Department of Justice National
427 Court Appointed Special Advocate program prior to or immediately after his appointment.
428 (d) The commission shall annually conduct a performance evaluation of the guardian

429 ad litem director.
430 (e) The commission shall establish a procedure to receive and resolve complaints
431 regarding:
432 (i) the guardian ad litem director;
433 (ii) the Office of Guardian Ad Litem Director; or
434 (iii) attorney guardians ad litem.
435 [(3)] (4) The guardian ad litem director shall:
436 (a) establish [policy and procedure] effective written policies and procedures for the
437 management of a statewide guardian ad litem program and the maintenance of records
438 regarding a guardian ad litem's representation of a child's best interest, so that guardians ad
439 litem will have a consistent understanding of the duties of guardians ad litem;
440 (b) manage the guardian ad litem program to assure that minors receive qualified
441 guardian ad litem services in abuse, neglect, and dependency proceedings in accordance with
442 state and federal law and policy;
443 (c) develop standards for contracts of employment and contracts with independent
444 contractors, and employ or contract with attorneys licensed to practice law in this state, to act
445 as attorney guardians ad litem in accordance with Section 78-3a-912 ;
446 (d) develop and provide training programs for attorney guardians ad litem and
447 volunteers in accordance with the United States Department of Justice National Court
448 Appointed Special Advocates Association standards;
449 (e) update and develop the guardian ad litem manual, combining elements of the
450 National Court Appointed Special Advocates Association manual with specific information
451 about the law and policy of this state;
452 (f) develop and provide a library of materials for the continuing education of attorney
453 guardians ad litem and volunteers;
454 (g) educate court personnel regarding the role and function of guardians ad litem;
455 (h) develop needs assessment strategies, perform needs assessment surveys, and ensure
456 that guardian ad litem training programs correspond with actual and perceived needs for
457 training;
458 (i) design and implement evaluation tools based on specific objectives targeted in the
459 needs assessments described in Subsection [(3)] (4)(h);

460 (j) prepare and submit an annual report to the [Judicial Council] commission and the
461 Child Welfare Legislative Oversight Panel regarding the development, policy, and management
462 of the statewide guardian ad litem program, and the training and evaluation of attorney
463 guardians ad litem and volunteers;
464 (k) hire, train, and supervise investigators; [and]
465 (l) administer the program of private guardians ad litem established by Section
466 78-7-45 [.];
467 (m) establish standard methods and forms for completing and documenting completion
468 of a guardian ad litem's duties in each case; and
469 (n) accurately track cases and implement management review procedures to determine
470 each guardian ad litem's productivity, case flow, case trends, and case resolution time.
471 [(4)] (5) A contract of employment or independent contract described under Subsection
472 [(3)] (4)(c) shall provide that attorney guardians ad litem in the second, third, and fourth
473 judicial districts devote their full time and attention to the role of attorney guardian ad litem,
474 having no clients other than the children whose interest they represent within the guardian ad
475 litem program.
476 Section 8. Section 78-3a-912 is amended to read:
477 78-3a-912. Appointment of attorney guardian ad litem -- Duties and
478 responsibilities -- Training -- Trained staff and court-appointed special advocate
479 volunteers -- Costs -- Immunity -- Annual report -- Review by Child Welfare Legislative
480 Oversight Panel.
481 (1) [(a)] The court[: (i)] may appoint an attorney guardian ad litem to represent the best
482 interest of a minor [involved in any case before the court; and (ii)]:
483 (a) in every case involving an abused child, a neglected child, or a dependent child that
484 results in a judicial proceeding; or
485 (b) in any other case for which the appointment of an attorney guardian ad litem is
486 expressly authorized by law.
487 (2) The court shall consider the best interest of a minor, consistent with the provisions
488 of Section 62A-4a-201 , in determining whether to appoint a guardian ad litem.
489 [(b)] (3) (a) In all cases where an attorney guardian ad litem is appointed, the court
490 shall make a finding that establishes the necessity of the appointment.

491 [(2)] (b) An attorney guardian ad litem shall represent the best interest of each minor
492 who may become the subject of a petition alleging abuse, neglect, or dependency, from the
493 earlier of the day that:
494 [(a)] (i) the minor is removed from the minor's home by the division; or
495 [(b)] (ii) the petition is filed.
496 [(3)] (4) The Office of [the] Guardian Ad Litem Director, through an attorney guardian
497 ad litem, shall:
498 (a) represent the best interest of the minor in all proceedings;
499 (b) prior to representing any minor before the court, be trained in:
500 (i) applicable statutory, regulatory, and case law; and
501 (ii) accordance with the United States Department of Justice National Court Appointed
502 Special Advocate Association guidelines;
503 (c) conduct or supervise an independent investigation in order to obtain first-hand, a
504 clear understanding of the situation and needs of the minor;
505 (d) (i) personally meet with the minor, unless the minor is less than 12 months of age;
506 (ii) personally interview the minor if the minor is [old enough] able to meaningfully
507 communicate;
508 (iii) determine the minor's goals and concerns regarding placement if the minor is able
509 to communicate the minor's goals and concerns; and
510 (iv) [personally assess or supervise an assessment of] consistent with Subsection (5),
511 assess the appropriateness and safety of the minor's environment in each placement;
512 (e) file written motions, responses, or objections at all stages of a proceeding when
513 necessary to protect the best interest of a minor;
514 (f) [personally or through a trained volunteer, paralegal, or other trained staff,] attend
515 all [administrative and foster care citizen review board] court hearings pertaining to the minor's
516 case;
517 (g) participate in all appeals unless excused by order of the court;
518 (h) be familiar with local experts who can provide consultation and testimony
519 regarding the reasonableness and appropriateness of efforts made by the Division of Child and
520 Family Services to:
521 (i) maintain a minor in the minor's home; or

522 (ii) reunify a minor with the minor's parent;
523 (i) to the extent possible, and unless it would be detrimental to the minor, personally or
524 through a trained volunteer, paralegal, or other trained staff, keep the minor advised of:
525 (i) the status of the minor's case;
526 (ii) all court and administrative proceedings;
527 (iii) discussions with and proposals made by other parties;
528 (iv) court action; and
529 (v) the psychiatric, medical, or other treatment or diagnostic services that are to be
530 provided to the minor;
531 (j) review proposed orders for, and as requested by the court; and
532 (k) prepare proposed orders with clear and specific directions regarding services,
533 treatment, evaluation, assessment, and protection of the minor and the minor's family[; and].
534 [(l) personally or through a trained volunteer, paralegal, or other trained staff, monitor
535 implementation of a minor's child and family plan and any dispositional orders to:]
536 [(i) determine whether services ordered by the court:]
537 [(A) are actually provided; and]
538 [(B) are provided in a timely manner; and]
539 [(ii) attempt to assess whether services ordered by the court are accomplishing the
540 intended goal of the services.]
541 (5) In determining the appropriateness and safety of the minor's environment in each
542 placement under Subsection (4)(d)(iv), an attorney guardian ad litem may consider:
543 (a) any relevant reports or observations by:
544 (i) the Division of Child and Family Services; or
545 (ii) a trained volunteer, paralegal, or other staff;
546 (b) personal observation; or
547 (c) other relevant information.
548 [(4)] (6) (a) Consistent with this Subsection [(4)] (6), an attorney guardian ad litem may
549 use trained volunteers, in accordance with Title 67, Chapter 20, Volunteer Government
550 Workers Act, trained paralegals, and other trained staff to assist in investigation and
551 preparation of information regarding the cases of individual minors before the court.
552 (b) The attorney guardian ad litem described in Subsection [(4)] (6)(a) may not

553 delegate the attorney's responsibilities described in Subsection [(3)] (4).
554 (c) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained
555 in and follow, at a minimum, the guidelines established by the United States Department of
556 Justice Court Appointed Special Advocate Association.
557 (d) The court may use volunteers trained in accordance with the requirements of
558 Subsection [(4)] (6)(c) to assist in investigation and preparation of information regarding the
559 cases of individual minors within the jurisdiction.
560 (e) When possible and appropriate, the court may use a volunteer who is a peer of the
561 minor appearing before the court, in order to provide assistance to that minor, under the
562 supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or
563 other trained staff.
564 [(5)] (7) The attorney guardian ad litem shall continue to represent the best interest of
565 the minor until released from that duty by the court.
566 [(6)] (8) (a) Consistent with Subsection [(6)] (8)(b), the juvenile court is responsible
567 for:
568 (i) all costs resulting from the appointment of an attorney guardian ad litem; and
569 (ii) the costs of volunteer, paralegal, and other staff appointment and training.
570 (b) The court shall use funds appropriated by the Legislature for the guardian ad litem
571 program to cover the costs described in Subsection [(6)] (8)(a).
572 (c) (i) When the court appoints an attorney guardian ad litem under this section, the
573 court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and volunteer
574 expenses against the minor's parents, parent, or legal guardian in a proportion that the court
575 determines to be just and appropriate.
576 (ii) The court may not assess those fees or costs against:
577 (A) a legal guardian, when that guardian is the state; or
578 (B) consistent with Subsection [(6)] (8)(d), a parent who is found to be impecunious.
579 (d) For purposes of Subsection [(6)] (8)(c)(ii)(B), if a person claims to be impecunious,
580 the court shall:
581 (i) require that person to submit an affidavit of impecuniosity as provided in Section
582 78-7-36 ; and
583 (ii) follow the procedures and make the determinations as provided in Section 78-7-37 .

584 [(7)] (9) An attorney guardian ad litem appointed under this section, when serving in
585 the scope of the attorney guardian ad litem's duties as guardian ad litem is considered an
586 employee of the state for purposes of indemnification under Title 63, Chapter 30d,
587 Governmental Immunity Act of Utah.
588 [(8)] (10) (a) An attorney guardian ad litem shall represent the best interest of a minor.
589 (b) If the minor's wishes differ from the attorney's determination of the minor's best
590 interest, the attorney guardian ad litem shall communicate the minor's wishes to the court in
591 addition to presenting the attorney's determination of the minor's best interest.
592 (c) A difference between the minor's wishes and the attorney's determination of best
593 interest may not be considered a conflict of interest for the attorney.
594 (d) The court may appoint one attorney guardian ad litem to represent the best interests
595 of more than one minor child of a marriage.
596 [(9)] (11) An attorney guardian ad litem shall be provided access to all Division of
597 Child and Family Services records regarding the minor at issue and the minor's family.
598 [(10)] (12) An attorney guardian ad litem shall maintain current and accurate records
599 regarding:
600 (a) the number of times the attorney has had contact with each minor; and
601 (b) the actions the attorney has taken in representation of the minor's best interest.
602 [(11)] (13) (a) Except as provided in Subsection [(11)] (13)(b), all records of an
603 attorney guardian ad litem are confidential and may not be released or made public upon
604 subpoena, search warrant, discovery proceedings, or otherwise. This Subsection (13)
605 supersedes Title 63, Chapter 2, Government Records Access and Management Act.
606 (b) Consistent with Subsection [(11)] (13)(d), all records of an attorney guardian ad
607 litem:
608 (i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative
609 Subpoena Powers; and
610 (ii) shall be released to the Legislature.
611 (c) (i) Except as provided in Subsection [(11)] (13)(c)(ii), records released in
612 accordance with Subsection [(11)] (13)(b) shall be maintained as confidential by the
613 Legislature.
614 (ii) Notwithstanding Subsection [(11)] (13)(c)(i), the Office of the Legislative Auditor

615 General may include summary data and nonidentifying information in its audits and reports to
616 the Legislature.
617 (d) (i) Subsection [(11)] (13)(b) constitutes an exception to Rules of Professional
618 Conduct, Rule 1.6, as provided by Rule 1.6(b)(4), because of:
619 (A) the unique role of an attorney guardian ad litem described in Subsection [(8)] (10);
620 and
621 (B) the state's role and responsibility:
622 (I) to provide a guardian ad litem program; and
623 (II) as parens patriae, to protect minors.
624 (ii) A claim of attorney-client privilege does not bar access to the records of an attorney
625 guardian ad litem by the Legislature, through legislative subpoena.
626 (e) The Office of [the] Guardian Ad Litem Director shall present an annual report to
627 the Child Welfare Legislative Oversight Panel detailing:
628 (i) the development, policy, and management of the statewide guardian ad litem
629 program;
630 (ii) the training and evaluation of attorney guardians ad litem and volunteers; and
631 (iii) the number of children served by the Office of [the] Guardian Ad Litem Director.
632 (14) (a) The guardian ad litem director shall report to the Health and Human Services
633 Interim Committee during the 2007 interim regarding:
634 (i) the progress of the Office of Guardian Ad Litem Director in making changes and
635 improvements in response to the February 2005 performance audit of the Office of Guardian
636 Ad Litem Director; and
637 (ii) recommendations for legislative changes relating to guardians ad litem.
638 (b) During the 2007 interim, the Health and Human Services Interim Committee shall:
639 (i) hear or review the report described in Subsection (14)(a); and
640 (ii) conduct a study to determine whether:
641 (A) the Office of Guardian Ad Litem Director should be:
642 (I) reauthorized; or
643 (II) replaced with a system consisting solely of private guardians ad litem; or
644 (B) other changes relating to guardians ad litem should be made by the Legislature.
645 (15) During the 2006 interim, the Health and Human Services Interim Committee shall

646 review the duties of guardians ad litem under this section to determine:
647 (a) whether guardians ad litem should perform each duty described in this section in
648 each case;
649 (b) whether any of the duties described in this section should be removed;
650 (c) whether all of the duties described in this section should be deleted and replaced
651 with a duty to represent the best interests of the minor in accordance with the ethical and
652 professional responsibilities of an attorney;
653 (d) the extent to which guardians ad litem should be involved in district court cases;
654 and
655 (e) whether a change should be made in the oversight of the Office of Guardian Ad
656 Litem Director.
657 Section 9. Section 78-7-45 is amended to read:
658 78-7-45. Private attorney guardian ad litem -- Appointment -- Costs and fees --
659 Duties -- Conflicts of interest -- Pro bono obligation -- Indemnification -- Minimum
660 qualifications.
661 (1) (a) The court may appoint a private attorney as guardian ad litem to represent the
662 best interests of the minor in any district court action in which the custody of or visitation with
663 a minor is at issue. The attorney guardian ad litem shall be certified by the director of the
664 Office of [the] Guardian Ad Litem Director as having met the minimum qualifications for
665 appointment, but shall not be employed by or under contract with the Office of [the] Guardian
666 Ad Litem Director.
667 (b) If an attorney guardian ad litem has been appointed for the minor in any prior or
668 concurrent action and that attorney guardian ad litem is available, the court shall appoint that
669 attorney guardian ad litem, unless good cause is shown why another attorney guardian ad litem
670 should be appointed.
671 (c) If, after appointment of the attorney guardian ad litem, an allegation of abuse,
672 neglect, or dependency of the minor is made the court shall:
673 (i) determine whether it is in the best interests of the minor to continue the
674 appointment; or
675 (ii) order the withdrawal of the private attorney guardian ad litem and appoint the
676 Office of [the] Guardian Ad Litem Director.

677 (2) (a) The court shall assess all or part of the attorney guardian ad litem fees, courts
678 costs, and paralegal, staff, and volunteer expenses against the parties in a proportion the court
679 determines to be just.
680 (b) If the court finds a party to be impecunious, under the provisions of Section
681 78-7-36 , the court may direct the impecunious party's share of the assessment to be covered by
682 the attorney guardian ad litem pro bono obligation established in Subsection (6)(b).
683 (3) The attorney guardian ad litem appointed under the provisions of this section shall:
684 (a) represent the best interests of the minor from the date of the appointment until
685 released by the court;
686 (b) conduct or supervise an independent investigation in order to obtain a clear
687 understanding of the situation and needs of the minor;
688 (c) interview witnesses and review relevant records pertaining to the minor and the
689 minor's family, including medical, psychological, and school records;
690 (d) if the minor is old enough to communicate and unless it would be detrimental to the
691 minor:
692 (i) meet with and interview the minor;
693 (ii) determine the minor's goals and concerns regarding custody or visitation; and
694 (iii) counsel the minor regarding the nature, purpose, status, and implications of the
695 case, of hearings, of recommendations, and proposals by parties and of court orders;
696 (e) conduct discovery, file pleadings and other papers, prepare and review orders, and
697 otherwise comply with the Utah Rules of Civil Procedure as necessary to protect the best
698 interest of the minor;
699 (f) unless excused by the court, prepare for and attend all mediation hearings and all
700 court conferences and hearings, and present witnesses and exhibits as necessary to protect the
701 best interests of the minor;
702 (g) identify community resources to protect the best interests of the minor and advocate
703 for those resources; and
704 (h) participate in all appeals unless excused by the court.
705 (4) (a) The attorney guardian ad litem shall represent the best interests of a minor. If
706 the minor's wishes differ from the attorney's determination of the minor's best interests, the
707 attorney guardian ad litem shall communicate to the court the minor's wishes and the attorney's

708 determination of the minor's best interests. A difference between the minor's wishes and the
709 attorney's determination of best interests is not sufficient to create a conflict of interest.
710 (b) The court may appoint one attorney guardian ad litem to represent the best interests
711 of more than one minor child of a marriage.
712 (5) An attorney guardian ad litem appointed under this section is immune from any
713 civil liability that might result by reason of acts performed within the scope of duties of the
714 attorney guardian ad litem.
715 (6) (a) Upon the advice of the Director of the Office of [the] Guardian Ad Litem
716 Director, the [Judicial Council] Commission on Criminal and Juvenile Justice, created in
717 Section 63-25a-101 , shall by rule establish the minimum qualifications and requirements for
718 appointment by the court as an attorney guardian ad litem.
719 (b) An attorney guardian ad litem may be required to appear pro bono in one case for
720 every five cases in which the attorney is appointed with compensation.
721 (7) This section shall be effective in the Second, Third, and Fourth Judicial Districts on
722 July 1, 2001, and in the remaining judicial districts of the state on July 1, 2002.