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S.B. 213
Senate 2nd Reading Amendments 2-14-2006 sm/ecm
This document includes Senate Committee Amendments incorporated into the bill on Mon, Feb 6, 2006 at 5:18 PM by rday. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Wed, Feb 15, 2006 at 9:10 AM by rday. --> 1
This document includes Senate Committee Amendments incorporated into the bill on Mon, Feb 6, 2006 at 5:18 PM by rday. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Wed, Feb 15, 2006 at 9:10 AM by rday. --> 1
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7 LONG TITLE
8 General Description:
9 This bill makes changes to the Guardian Ad Litem statute in response to a legislative
10 audit.
11 Highlighted Provisions:
12 This bill:
13 . clarifies some duties of the Guardian Ad Litem;
14 . separates out some responsibilities from others to make the division clear;
15 . removes some unnecessary cross-references;
16 . clarifies the release of records to the Legislature; and
17 . makes technical corrections.
18 Monies Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 S. [
21a Minor by providing superseding and technical amendments. .S
22 Utah Code Sections Affected:
23 AMENDS:
24 78-3a-912, as last amended by Chapters 102, 286 and 304, Laws of Utah 2005
25 78-7-9, as last amended by Chapter 168, Laws of Utah 2002
26
27 Be it enacted by the Legislature of the state of Utah:
28
29 78-3a-912. Appointment of attorney guardian ad litem -- Right of refusal --
30 Duties and responsibilities -- Training -- Trained staff and court-appointed special
31 advocate volunteers -- Costs -- Immunity -- Annual report.
32 (1) [
33 interest of a [
34 the best interest of a [
35 determining whether to appoint a guardian ad litem.
36 [
37
38 (2) An attorney guardian ad litem shall be appointed to represent the best interest of
39 each [
40 dependency, from the [
41 [
42 earlier.
43 (3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad
44 litem, shall:
45 (a) represent the best interest of the [
46 (b) [
47 statutory, regulatory, [
48 Guardian Ad Litem for representation of children prior to representing any child before the
49 court;
50 [
51
52 (c) conduct or supervise an independent investigation in order to obtain first hand, a
53 clear understanding of the situation and needs of the [
54 (d) (i) personally meet with the [
55 (ii) personally, or through a trained staff, interview the [
56 child is old enough to communicate; and
57 (iii) determine the [
58 when the child is capable of expressing goals and desires, and when the guardian ad litem
Senate 2nd Reading Amendments 2-14-2006 sm/ecm
59
determines it would not be harmful to the child to ask questions concerning the child's desires59
60 regarding placement;
61 [
62
63 (e) file written motions, responses, or objections at all stages of a proceeding when
64 necessary to protect the best interest of a [
65 (f) personally or through a trained volunteer, paralegal, or other trained staff, attend all
66 administrative and foster care citizen review board hearings pertaining to the [
67 case;
68 (g) participate in all appeals unless excused by order of the court;
69 (h) be familiar with local experts who can provide consultation and testimony
70 regarding the reasonableness and appropriateness of efforts made by the Division of Child and
71 Family Services to[
72 reunify a [
73 (i) to the extent possible, and unless it would be detrimental to the [
74 personally or through a trained volunteer, paralegal, or other trained staff, keep the [
75 child advised of[
76 [
77 [
78 [
79 [
80
81 (j) review proposed orders for, and as requested by the court[
82 orders with clear and specific directions regarding services, treatment, and evaluation,
83 assessment, and protection of the [
84 [
85 monitor implementation of a S. [
85a any
86 dispositional orders to[
87 provided[
88 [
89
90
91 trained volunteers, in accordance with Title 67, Chapter 20, Volunteer Government Workers
92 Act, trained paralegals, and other trained staff to assist in investigation and preparation of
93 information regarding the cases of individual [
94 attorney guardian ad litem [
95 attorney's responsibilities described in Subsection (3).
96 [
97 trained in and follow, at a minimum, the guidelines established by the United States
98 Department of Justice Court Appointed Special Advocate Association.
99 [
100 Subsection (4)[
101 cases of individual [
102 [
103 the [
104 child, under the supervision of an attorney guardian ad litem or the attorney's trained volunteer,
105 paralegal, or other trained staff.
106 (5) The attorney guardian ad litem shall continue to represent the best interest of the
107 [
108 (6) (a) [
109
110 costs of volunteer, paralegal, and other staff appointment and training[
111 shall use funds appropriated by the Legislature for the guardian ad litem program to cover [
112 those costs [
113 [
114 the court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and
115 volunteer expenses against the [
116 proportion that the court determines to be just and appropriate.
117 (ii) The court may not assess those fees or costs against[
118 that guardian is the state[
119 found to be impecunious. [
120 to be impecunious, the court shall[
121
122 determinations as provided in Section [
123 (7) An attorney guardian ad litem appointed under this section, when serving in the
124 scope of the attorney guardian ad litem's duties as guardian ad litem is considered an employee
125 of the state for purposes of indemnification under Title 63, Chapter 30d, Utah Governmental
126 Immunity Act [
127 (8) (a) An attorney guardian ad litem shall represent the best interest of a [
128 [
129 child's best interest, the attorney guardian ad litem shall communicate the [
130 wishes to the court in addition to presenting the attorney's determination of the [
131 best interest. [
132 determination of best interest may not be considered a conflict of interest for the attorney.
133 [
134 interests of more than one [
135 (9) An attorney guardian ad litem shall be provided access to all Division of Child and
136 Family Services records regarding the [
137 (10) An attorney guardian ad litem shall maintain current and accurate records
138 regarding:
139 (a) the number of times the attorney has had contact with each [
140 (b) the actions the attorney has taken in representation of the [
141 interest.
142 (11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian
143 ad litem are confidential and may not be released or made public upon subpoena, search
144 warrant, discovery proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2,
145 Government Records Access and Management Act.
146 (b) [
147 litem:
148 (i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative
149 Subpoena Powers; and
150 (ii) shall be released to the Legislature.
151 (c) [
Senate Committee Amendments 2-6-2006 rd/ecm
152
accordance with Subsection (11)(b) shall be maintained as confidential by the Legislature. [152
153
154 however, include summary data and nonidentifying information in its audits and reports to the
155 Legislature.
156 (d) [
157 described in Subsection (8)(a), and the state's role and responsibility to provide a guardian ad
158 litem program and, as parens patriae, to protect children, Subsection (8)(a) constitutes an
159 exception to Rules of Professional Conduct, Rule 1.6, as provided by Rule 1.6(b)(4)[
160
161
162
163 to the records of an attorney guardian ad litem by the Legislature, through legislative subpoena.
164 (e) The Office of the Guardian Ad Litem shall present an annual report to the Child
165 Welfare Legislative Oversight Panel detailing:
166 (i) the development, policy, and management of the statewide guardian ad litem
167 program;
168 (ii) the training and evaluation of attorney guardians ad litem and volunteers; and
169 (iii) the number of children served by the Office of the Guardian Ad Litem.
170 Section 2. Section 78-7-9 is amended to read:
171 78-7-9. Appointment of attorney guardian ad litem in child abuse and neglect
172 proceedings.
173 (1) If child abuse, child sexual abuse, or neglect is alleged in any [
174 state court proceeding, the court may upon its own motion or shall upon the motion of any
175 party to the proceeding appoint an attorney guardian ad litem from the Office of the Guardian
176 Ad Litem to represent the best interest of the child[
177
178 (2) The court may appoint an attorney guardian ad litem[
179 Guardian Ad Litem when it considers it necessary and appropriate, to represent the best interest
180 of the child in all related proceedings conducted in any state court involving the alleged abuse,
181 child sexual abuse, or neglect.
182 (3) S. [
182a
183
184 section shall:
185 (a) represent the best interests of the child from the date of the appointment until
186 released by the court;
187 (b) be trained in applicable statutory, regulatory, case law, and the curriculum
188 established by the Office of the Guardian Ad Litem for representation of children;
189 (c) review relevant records pertaining to the child and the child's family, including
190 medical, psychological, and school records in order to obtain a clear understanding of the
191 situation and needs of the child;
192 (d) personally meet with the child;
193 (e) personally or through trained staff, interview the child if the child is old enough to
194 communicate;
195 (f) determine the child's goals and concerns regarding custody or visitation where the
196 child is capable of expressing goals or desires, and when the guardian ad litem determines it
197 will not be harmful to the child to ask questions concerning the child's desires regarding
198 placement;
199 (g) counsel the child regarding the nature, purpose, status, and implications of the case,
200 hearings, recommendations, and proposals by parties and of court orders;
201 (h) conduct discovery, file pleadings and other papers, prepare and review orders, and
202 otherwise comply with the Utah Rules of Civil Procedure as necessary to protect the best
203 interest of the child;
204 (i) unless excused by the court, prepare for and attend all mediation hearings and all
205 court conferences and hearings, and present witnesses and exhibits as necessary to protect the
206 best interests of the child;
207 (j) identify community resources to protect the best interests of the child and advocate
208 for those resources; and
209 (k) participate in all appeals unless excused by the court.
210 (4) If an attorney guardian ad litem has been appointed for the child by any court in the
211 state in any prior proceeding or related matter, the court may continue that appointment or may
212 reappoint that attorney guardian ad litem, if still available, to act on behalf of the child.
213 (5) If after investigation, the Office of the Guardian Ad Litem determines that the
214
215 Ad Litem, the guardian ad litem may seek withdrawal from the court and request that the court
216 appoint a private guardian ad litem pursuant to Section 78-7-45 .
217 [
218 attorney guardian ad litem and shall use funds appropriated by the Legislature for the guardian
219 ad litem program to cover those costs.
220 [
221 pursuant to this section, the court may assess all or part of those attorney's fees, court costs,
222 paralegal, staff, and volunteer expenses against the [
223 guardian in an amount that the court determines to be just and appropriate.
224 (b) The court may not assess those fees or costs against a legal guardian, when that
225 guardian is the state, or against a parent, parents, or legal guardian who is found to be
226 impecunious. If a person claims to be impecunious, the court shall require of that person an
227 affidavit of impecuniosity as provided in Section 78-7-36 and the court shall follow the
228 procedures and make the determinations as provided in Section 78-7-36 .
229 (c) If the court appoints the Office of the Guardian Ad Litem in a criminal case
230 pursuant to this section and if the defendant is convicted of a crime which includes child abuse
231 or neglect, the court shall include as part of the defendant's sentence all or part of the attorney's
232 fees, court costs, and paralegal, staff, and volunteer expenses of the Office of the Guardian Ad
233 Litem.
234 (7) An attorney guardian ad litem appointed in accordance with the requirements of
235 this section [
236 an attorney guardian ad litem, considered an employee of this state for purposes of
237 indemnification under [
238 (8) (a) An attorney guardian ad litem shall represent the best interest of a child. If the
239 child's wishes differ from the attorney's determination of the child's best interest, the attorney
240 guardian ad litem shall communicate the child's wishes to the court in addition to presenting
241 the attorney's determination of the child's best interest. A difference between the child's wishes
242 and the attorney's determination of best interest may not be considered a conflict of interest for
243 the attorney.
244 (b) The court may appoint one attorney guardian ad litem to represent the best interests
Senate 2nd Reading Amendments 2-14-2006 sm/ecm
245
of more than one child of a marriage.245
246 (9) An attorney guardian ad litem shall be provided access to all Division of Child and
247 Family Services records regarding the child at issue and the child's family.
248 (10) An attorney guardian ad litem shall maintain current and accurate records
249 regarding the number of times the attorney has had contact with each child and the actions the
250 attorney has taken in representation of the child's best interest.
251 (11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian
252 ad litem are confidential and may not be released or made public upon subpoena, search
253 warrant, discovery proceedings, or otherwise. This Subsection (11) supersedes Title 63,
254 Chapter 2, Government Records Access and Management Act.
255 (b) All records of an attorney guardian ad litem are subject to legislative subpoena,
256 under Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the
257 Legislature.
258 (c) Records released in accordance with Subsection (11)(b) shall be maintained as
259 confidential by the Legislature. The Office of the Legislative Auditor General may, however,
260 include summary data and nonidentifying information in its audits and reports to the
261 Legislature.
262 (d) Because of the unique role of an attorney guardian ad litem described in Subsection
263 (8)(a), and the state's role and responsibility to provide a guardian ad litem program and, as
264 parens patriae, to protect children, Subsection (8)(a) constitutes an exception to Rules of
265 Professional Conduct, Rule 1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client
266 privilege does not bar access to the records of an attorney guardian ad litem by the Legislature,
267 through legislative subpoena.
267a S. Section 3. Coordinating S.B. 213 with H.B. 103 -- Superseding and technical
267b amendments.
267c If this S.B. 213, Clarifications to Guardian Ad Litem, and H.B. 103, Changes to
267d Definitions of a Child and a Minor, both pass, it is the intent of the Legislature that Section
267e 78-3a-912 be modified to read as follows:
267f 78-3a-912. Appointment of attorney guardian ad litem -- Duties and responsibilities --
267g Training -- Trained staff and court-appointed special advocate volunteers -- Costs -- Immunity
267h -- Annual report.
267i (1) [
267j interest of a minor involved in any case before the court[
267k interest of a minor[
267l
Senate 2nd Reading Amendments 2-14-2006 sm/ecm
S. determining whether to appoint a guardian ad litem.
S. determining whether to appoint a guardian ad litem.
267m [
267n
267o (2) An attorney guardian ad litem shall be appointed to represent the best interest of each
267p [
267q from the [
267r child's home by the division[
267s (3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad litem, shall:
267t (a) represent the best interest of the minor in all proceedings;
267u (b) [
267v statutory, regulatory, [
267w Guardian Ad Litem for representation of minors prior to representing any minor before the
267x court;
267y [
267z
267aa (c) conduct or supervise an independent investigation in order to obtain first-hand, a
267ab clear understanding of the situation and needs of the minor;
267ac (d)(i) personally meet with the minor;
267ad (ii) personally, or through a trained staff, interview the minor if the minor is old
267ae enough to communicate; and
267af (iii) determine the minor's goals and concerns regarding placement[
267ag minor is capable of expressing goals and desires, and when the guardian ad litem determines it
267ah would not be harmful to the minor to ask questions concerning the minor's desires relating to
267ai placement;
267aj [
267ak
267al (e) file written motions, responses, or objections at all stages of a proceeding when
267am necessary to protect the best interest of a minor;
267an (f) personally or through a trained volunteer, paralegal, or other trained staff, attend
267ao all administrative and foster care citizen review board hearings pertaining to the minor's case;
267ap (g) participate in all appeals unless excused by order of the court;
267aq (h) be familiar with local experts who can provide consultation and testimony
267ar regarding the reasonableness and appropriateness of efforts made by the Division of Child and
267as Family Services to[
267at S.
Senate 2nd Reading Amendments 2-14-2006 sm/ecm
child with the [minor's] child's parent;
child with the [
267au (i) to the extent possible, and unless it would be detrimental to the minor, personally or
267av through a trained volunteer, paralegal, or other trained staff, keep the minor advised of [
267aw the status of the minor's case;
267ax [
267ay
267az
267ba
267bb
267bc (j) review proposed orders for, and as requested by the court [
267bd orders with clear and specific directions regarding services, treatment, and evaluation,
267be assessment, and protection of the minor and the minor's family; and
267bf [
267bg monitor implementation of a minor's child and family plan and any dispositional orders to [
267bh
267bi are provided in a timely manner [
267bj
267bk (4)(a) [
267bl volunteers, in accordance with Title 67, Chapter 20, Volunteer Government Workers Act,
267bm trained paralegals, and other trained staff to assist in investigation and preparation of
267bn information regarding the cases of individual minors before the court. [
267bo guardian ad litem [
267bp responsibilities described in Subsection (3).
267bq [
267br trained in and follow, at a minimum, the guidelines established by the United States
267bs Department of Justice Court Appointed Special Advocate Association.
267bt [
267bu Subsection (4)[
267bv cases of individual minors within the jurisdiction.
267bw [
267bx the minor appearing before the court, in order to provide assistance to that minor, under the
267by supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or
267bz other trained staff.
267ca (5) The attorney guardian ad litem shall continue to represent the best interest of the minor .S
267cb S.
Senate 2nd Reading Amendments 2-14-2006 sm/ecm
until released from [that duty] duties by the court.
until released from [
267cc (6)(a) [
267cd costs resulting from the appointment of an attorney guardian ad litem[
267ce volunteer, paralegal, and other staff appointment and training[
267cf funds appropriated by the Legislature for the guardian ad litem program to cover [
267cg costs [
267ch [
267ci the court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and
267cj volunteer expenses against the [
267ck proportion that the court determines to be just and appropriate.
267cl (ii) The court may not assess those fees or costs against[
267cm that guardian is the state[
267cn found to be impecunious. [
267co be impecunious, the court shall[
267cp impecuniosity as provided in Section 78-7-36[
267cq determinations as provided in Section [
267cr (7) An attorney guardian ad litem appointed under this section, when serving in the scope of
267cs the attorney guardian ad litem's duties as guardian ad litem is considered an employee of the
267ct state for purposes of indemnification under Title 63, Chapter 30d, Utah Governmental
267cu Immunity Act[
267cv (8)(a) An attorney guardian ad litem shall represent the best interest of a minor.
267cw [
267cx the attorney guardian ad litem shall communicate the minor's wishes to the court in addition
267cy to presenting the attorney's determination of the minor's best interest. [
267cz between the minor's wishes and the attorney's determination of best interest may not be
267da considered a conflict of interest for the attorney.
267db [
267dc interests of more than one [
267dd (9) An attorney guardian ad litem shall be provided access to all Division of Child and Family
267de Services records regarding the minor at issue and the minor's family.
267df (10) An attorney guardian ad litem shall maintain current and accurate records regarding:
267dg (a) the number of times the attorney has had contact with each minor; and
267dh (b) the actions the attorney has taken in representation of the minor's best interest.
267di (11)(a) Except as provided in Subsection (11)(b), all records of an attorney guardian ad litem .S
267dj S.
Senate 2nd Reading Amendments 2-14-2006 sm/ecm
are confidential and may not be released or made public upon subpoena, search warrant,
are confidential and may not be released or made public upon subpoena, search warrant,
267dk discovery proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2,
267dl Government Records Access and Management Act.
267dm (b)[
267dn litem:
267do (i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative Subpoena
267dp Powers; and
267dq (ii) shall be released to the Legislature.
267dr (c) [
267ds accordance with Subsection (11)(b) shall be maintained as confidential by the Legislature.
267dt [
267du may, however, include summary data and nonidentifying information in its audits and reports
267dv to the Legislature.
267dw (d)[
267dx described in Subsection (8)(a), and the state's role and responsibility to provide a guardian ad
267dy litem program and, as parens patriae, to protect children, Subsection (8)(a) constitutes an
267dz exception to Rules of Professional Conduct, Rule 1.6, as provided by Rule 1.6(b)(4)[
267ea
267eb
267ec
267ed [
267ee guardian ad litem by the Legislature, through legislative subpoena.
267ef (e) The Office of the Guardian Ad Litem shall present an annual report to the Child
267eg Welfare Legislative Oversight Panel detailing:
267eh (i) the development, policy, and management of the statewide guardian ad litem
267ei program;
267ej (ii) the training and evaluation of attorney guardians ad litem and volunteers; and
267ek (iii) the number of [
Legislative Review Note
as of 1-31-06 9:53 AM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.