C O V E R S T O R Y

Protecting our most vulnerable citizens

I. Introduction

On Feb. 5, Chief Justice Frank Drowota announced the adoption by the Tennessee Supreme Court of guidelines for those serving as Guardians ad Litem (GALs) in child abuse and neglect cases.₁ In his remarks, the chief justice emphasized the importance of these types of proceedings:

Although all legal issues are important, child abuse and neglect cases are among the most important because they involve the most vulnerable members of our society. We in the judicial system have a responsibility to ensure that these cases are timely resolved in a manner that respects the rights of parents and fully safeguards the health and welfare of children.₂

• The guidelines, promulgated as Supreme Court Rule 40, achieve four important objectives:
• They clarify that the GAL is to function as a lawyer, with respect to preparation for, participation in, and conduct during hearings, rather than as an expert witness or special master. S.Ct. Rule 40 (f).
• They ensure meaningful contact and consultation between the GAL and the child throughout the course of representation so that children can genuinely participate in the process by which such significant decisions affecting their lives are made. S.Ct. Rule 40 (c), (d)(2), (d)(3), (d)(10).
• They provide a list of specific factors for GALs to consider when forming a position on what course of action is in the best interests of a child, so that GALs take a position based on a thorough fact-gathering process and with as much objectivity as is possible. S.Ct.Rule 40 (b)(2).
• They establish a protocol to assist the GAL in what most experienced practitioners believe is the relatively rare instance when, after thorough consultation and advice is given by the GAL, the child nevertheless urges the GAL to take a position that the GAL believes is contrary to the child's best interests. S.Ct. Rule 40(e).

II. The development of the guidelines

The guidelines were developed by the Supreme Court's Permanency Planning Commission, whose membership included representatives from the juvenile court bench and bar, the legislature, the Department of Children's Services, Tennessee's Court Appointed Special Advocates Programs (CASA), the Tennessee Commission on Children and Youth, and mental health and child welfare professionals. The provisions adopted by the court were the result of two years of research, discussion, drafting and redrafting.

The Supreme Court Commission reviewed guidelines promulgated in other states as well as guidelines adopted by national organizations and received considerable input from the Tennessee Bar Association's Juvenile Justice Commission. Among the sources that the commission found particularly instructive in developing the guidelines were:

• the American Bar Association Standards of Practice for Lawyers Representing a Child in Abuse and Neglect Cases (ABA Standards),₃ which commission members viewed as the most thoughtful and widely respected national standards for representation developed to date;
• the standards for GALs adopted by the State of Michigan,₄ which commission members viewed as the best of the guidelines enacted by other states; and
• decisions of the Tennessee Court of Appeals, in which the Court of Appeals identified problematic practices and provided guidance for lawyers who serve as GALs.₅

The Permanency Planning Commission submitted the proposed guidelines to the Supreme Court with a unanimous recommendation that they be adopted. The Supreme Court published the proposed guidelines for comment in the fall of 2001 and, following the consideration of comments received during the comment period, including a strong endorsement by the Tennessee Bar Association, adopted the proposed guidelines with some minor modifications.

III. The goal: improving the quality of advocacy for children

The guidelines were developed in response to concerns about the adequacy of the representation provided to children in neglect and abuse proceedings. Although Tenn. Code Ann. 37-1-149 and 37-1-403 and Tenn. R. Juv. P. 37 require the appointment of a GAL in any child neglect or abuse proceeding, juvenile courts have not uniformly complied with this legislative mandate.₆ And while many GALs provide high-quality representation, studies in Tennessee, as in other states, indicate that representation has not been uniformly excellent.₇ Many of those who have expressed concerns about the quality of advocacy provided by some court-appointed GALs believe that a major contributing factor to this problem has been the absence of specific guidelines for lawyers serving in this capacity.

Lawyers appointed to serve as GALs want to do a good job. However, because the GAL role has been so vaguely defined and the practices and attitudes about that role so varied across the state, many lawyers are unsure of their responsibilities. By clearly defining the role of the GAL and designating specific tasks expected of the lawyer who takes on this role, adoption of the guidelines should help GALs improve the quality of their representation.

In addition to improving the quality of advocacy, the adoption of the guidelines and the focus that the Tennessee Supreme Court has placed on the importance of the lawyer's role in these proceedings should encourage lawyers to accept GAL appointments. Many lawyers have been reluctant to accept GAL appointments because of the lack of clarity of their role and because they viewed some of the activities that GALs have been asked to perform as inconsistent with their legal training and practice. The guidelines not only define the role of the GAL, but they make clear that quality GAL work is absolutely consistent with good lawyering. The child is the "client of the guardian ad litem."₈ The principles and practices developed by conscientious attorneys in counseling and advising clients, in preparing for negotiations and hearings, and in advocating for their clients, are the same principles and practices that ensure high-quality GAL work.

IV. The role of the GAL: lawyer, not witness

One of the most important areas of controversy that the guidelines address is that raised by a long-established practice of GALs filing reports and making recommendations to the judge. The Court of Appeals has referred to this as:

the practice of appointing special masters and guardians ad litem in child custody cases with the expectation that the one so appointed become a combination investigator, interrogator, reporter and expert in child care.₉

Those who have supported the continuation of this practice have maintained that allowing the GAL to gather information and present a report without having to disclose sources of information is critical to ensuring that the court will get information from sources who would not otherwise be willing to come forward and testify. In addition, they have asserted that allowing the GAL to gather and synthesize evidence and make recommendations enables the judge to dispose of the case more efficiently because the judge can rely on the GAL as a kind of expert witness/special master.

In adopting the guidelines, the Supreme Court has embraced a contrary position: that judicial decision-making should be based on evidence presented in court, subject to cross examination and to the rules regarding admissibility that are designed to ensure a fair and accurate decision-making process.

According to the guidelines, a lawyer serving as GAL should present evidence and argument just as he or she would in any other court proceeding. The salutary aspects of GAL reports and recommendations can be maintained by filing trial briefs, and proposed findings of fact and conclusions of law, and making opening statements and closing arguments. In addition, a GAL might decide to provide a report to the other parties regarding the GAL's view of the case in order to facilitate settlement or encourage the presentation of some information to the court by means of stipulation. However, the guidelines explicitly adopt the position previously taken by the Tennessee Court of Appeals that the GAL, with respect to preparation for, participation in, and conduct during hearings, is to function as a lawyer, not as an expert witness or special master.₁₀

The explicit rejection of the expert witness/special master role and the reference to the child as "the client of the guardian ad litem" provides guidance in resolving another important issue: the applicability of principles of privilege and confidentiality to the GAL-child relationship. When a guardian ad litem functions as an expert witness, special master, or an independent party, due process rights of parents to confront evidence against them and to cross examine adverse witnesses would preclude the assertion of privilege or confidentiality.₁₁ However, when the guardian ad litem functions as a lawyer, and the child is designated as the client, privilege and confidentiality attach to the relationship.₁₂

It is, therefore, reasonable to conclude that the GAL and the child should be able to assert a privilege with respect to communications between the child and the GAL and confidentiality with respect to information obtained by the GAL in the course of representation. It would also appear, given the approach that the guidelines take to situations in which the child's preferences conflict with the child's best interests (discussed in Part VI of this article), that the GAL would be able to waive the privilege and confidentiality when, after fully consulting with the child client, the GAL reasonably believes disclosure is necessary to prevent substantial harm to the child client or another person.₁₃

V. The scope of the GAL's responsibilities

One of the major concerns discussed by the Permanency Planning Commission is whether the nature and extent of the responsibilities of the GAL are too demanding, especially given the limited compensation available for appointed counsel. Of particular concern to some is the emphasis placed by the guidelines on the GAL providing post-dispositional advocacy for children.

The guidelines recognize that many of the most critical decisions regarding children in these kinds of cases are made administratively by the Department of Children's Services after the adjudicatory and dispositional hearings in juvenile court. Under the Tennessee Juvenile Court Act and the Federal Adoption and Safe Families Act (ASFA), decisions regarding specific placements, necessary services, and frequency and manner of family contact, are largely decided through departmental staffings and reviews.₁₄

In addition, the reforms embraced by the Department of Children's Services in its settlement of the case of Brian A. v. Sundquist₁₅ make post-dispositional involvement of GALs especially important. The settlement envisions a greater sensitivity to the concerns and preferences of children in foster care, increased engagement of the child and family in the permanency planning process, a much greater degree of individualized case planning, and more options and greater flexibility in providing services to meet the needs of children and families in these cases.

Adequacy of compensation has been and remains a serious concern of the Tennessee Supreme Court and the bar. As a partial response to this concern, the Supreme Court has recently amended Rule 13 to increase compensation for lawyers handling child abuse and neglect cases, especially in the area of post-dispositional and appellate practice.₁₆ Rule 13 now explicitly treats post-

dispositional representation of children in staffings and foster care reviews as separate proceedings for which the GAL is entitled to additional compensation, thus signaling and supporting the expectation of post-dispositional advocacy articulated in the guidelines.₁₇

The nature and extent of the responsibilities set out in the guidelines are consistent with other standards of practice for child advocates throughout the United States.₁₈ While there is a continuing need to increase the compensation rates for GALs in Tennessee as in other states, in the end, concerns over compensation should not affect the expectations for attorneys who assume the important responsibility of representing vulnerable children and youth in these types of proceedings.

There are some lawyers who may be discouraged from serving as GALs because they would prefer a more limited role. Some lawyers have restricted their activity to appearing at hearings, listening to the evidence presented, and, at the conclusion of the hearing, making recommendations to the judge about what is in the best interests of the child. Such an approach is not acceptable under the guidelines. To the extent that some lawyers may decline appointments because they are unwilling or unable to meet the expectations of these guidelines, the guidelines serve the important function of discouraging potential GALs who would not provide the effective representation to which children are entitled.

VI. Resolving potential conflicts between "best interests" and child's preferences

One of the most widely discussed issues for attorneys serving as GALs is what to do when the child is urging the GAL to take a position that the GAL believes is not in the child's best interests.

The approach taken by the guidelines with respect to this issue reflects the understanding of experienced practitioners who have been providing quality representation for children both in Tennessee and elsewhere - when conscientious representation is provided for children, genuine conflicts of interest between the attorney and GAL roles are relatively rare. As the Commentary to the ABA Standards states:

As a practical matter, when the lawyer has established a trusting relationship with the child, most conflicts can be avoided.₁₉

[I]n most cases the ethical conflict involved in asserting a position that would seriously endanger the child, especially by disclosure of privileged information, can be resolved through the lawyer's counseling function. If the lawyer has taken the time to establish rapport with the child and gain that child's trust, it is likely that the lawyer will be able to persuade the child to abandon a dangerous position or at least identify an alternate course.₂₀

As experienced child advocates have noted, most youth who are old enough to express their own preferences are able to distinguish between a wish they might have in a perfect world versus their "actual alternative options" or "actually available alternatives."₂₁ At any given time, the child faces a concrete set of alternatives compared to the universe of wishes and dreams. A young person may express a wish to live in a home that the court has found to be unfit, but can appreciate that since the court will not allow that, he or she needs to select from actually available alternatives. In most instances, such a discussion between the GAL and the child will lead to the child making a choice not inconsistent with his or her best interests.

There are two different approaches that have been proposed to guide GALs who, after thoroughly consulting with and advising their young client, are asked by the child to assert a position that is contrary to the child's best interests. One approach is that suggested by the ABA: that the lawyer in such circumstances should advocate for the child's wishes and request that the court appoint a new lawyer to advocate for the child's best interests. The second approach is that adopted by the Michigan guidelines for GALs₂₂ that the lawyer should advocate for the child's best interests and request that the court appoint a new lawyer to advocate for the child's wishes.₂₃

The guidelines take the position that either of these thoughtful approaches adequately serves the important principle that a child's wishes and desires are effectively presented to the court.₂₄ The guidelines therefore require that the lawyer take one of those two approaches but allow the lawyer to choose between the two based on his or her preference in a particular case.₂₅

VII. Conclusion

The Tennessee Supreme Court's adoption of guidelines for guardians ad litem promises to be one of the most significant improvements in child welfare law and practice in Tennessee. The Supreme Court has recognized the essential role of the GAL in ensuring that these "most vulnerable members of our society" receive the protection, care and nurturing that our child welfare system aspires to provide. Through these guidelines, the court calls upon the members of the bar to bring the best of their advocacy skills and the highest level of dedication to their representation of children - and does so with confidence that we will respond to the call.

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Notes

1. The guidelines apply to GALs appointed in dependent neglect proceedings and termination of parental rights proceedings pursuant to the requirements of Tenn. Code Ann. 37-1-149 and Rule 37 of the Tennessee Rules of Juvenile Procedure. The guidelines do not by their terms apply to appointment of GALs in other proceedings, such as divorce cases. However, attorneys serving as GALs in other proceedings may still find these guidelines helpful.

2. Remarks from the bench by Chief Justice Frank Drowota on Feb. 5, 2002, announcing the adoption of S.Ct. Rule 40.

3. Available on-line at http://www.abanet.org/child/childrep.html

4. Mich. Comp. Laws §712A.17d (West 1998); Mich. Stat. Ann. §27.3178 (598.17d) (1998).

5. McKeehan v. McKeehan, C.A. No. 02A01-9407-CV-165, 1995 Tenn. App. LEXIS 838 (Tenn. App. Nov. 21, 1995); 1995 WL 695124 (Tenn. App. Nov. 21, 1995); In re Kelch, 8 TAM 32-20 (Tenn. App. July 6, 1983).

6. Tennessee Court Improvement Program for Juvenile Dependency Cases: The Program Report for the Year, Feb. 22, 1997-Feb.21, 1998 (May 1998), p. 4. ("According to the survey results children and parents [in Tennessee] are represented in less than a third of dependency hearings prior to termination of parental rights. Even at termination hearings, surveys showed that fewer than 60 percent of parents and 40 percent of children are represented by counsel.")

7. See Tennessee Supreme Court Improvement Program for Juvenile Dependency Cases: An Assessment of Tennessee's Court Performance and a Plan for Improvements (August 1997) pp. 34-38.

8. S.Ct. Rule 40(c)(1).

9. In re Kelch, 8 TAM 32-20, Tenn. App., July 6, 1983 at p. 7.

10. S.Ct. Rule 40(f); McKeehan v. McKeehan, C.A. No. 02A01-9407-CV-165, 1995 Tenn. App. LEXIS 838 (Tenn. App. Nov. 21, 1995); 1995 WL 695124 (Tenn. App. Nov. 21, 1995); Tenn. App., Nov. 21, 1995 (holding GAL report inadmissible hearsay and GAL not qualified as expert witness); In re Kelch, 8 TAM 32-20 (Tenn. App., July 6, 1983) at pp. 7-8. The court in Kelch explained how to "reform the practice [of the guardian ad litem] to conform to established procedures and ethics":

A Special Master's duty is to sit as a hearing examiner, to hear testimony, formulate findings of law and fact, and to report the same to the court with a transcript of the evidence adduced.

A guardian ad litem is a lawyer appointed to represent an incompetent litigant. His duty is identical to that of any other lawyer representing a litigant, except that he has a special duty to make decisions for his client that his client is incompetent to make. As a lawyer, the guardian ad litem has a duty to investigate, locate and interrogate witnesses; but the results of his investigation and interrogation must be presented to the court in the same manner as any other lawyer would do so, i.e. in the form of testimony of witnesses having knowledge of the facts.

Of course, special circumstances might justify a guardian ad litem testifying as to facts within his peculiar knowledge, but such occasion should be limited to the exceptions listed in Supreme Court Rule 8, §EC 5-9, 5-10 and DR 5-101 (B).

In re Kelch at 7-8.

The specific reference in Rule 40(f), as in In re Kelch, to the Code of Professional Responsibility reflects that the guidelines are intended to supplement the provisions of the Code of Professional Responsibility, not supplant them, and that GAL representation of children can and should be provided in a manner consistent with both the guidelines and the Code.

11. See, e.g., Ross v. Godwah, 131 N.H. 291, 554 A.2d 1284 (N.H. 1988).

12. See, e.g., Sharonda B. v. Herrick, 1998 WL 547306 (N.D. Ill. 1998), 1998 U.S. Dist. LEXIS 9433; In re Maraziti, 233 N.J. Super. 488, 559 A.2d 447, 450 (N.J. Super. Ct. App. Div. 1989).

13. See discussion, §VI infra. Michigan has taken the position that the attorney-client privilege with respect to communications between the guardian ad litem and the child should be strictly applied. Mich. Comp. Laws §712A.17d(1)(a) (West 1998); Mich. Stat. Ann. §27.3178 (598.17d(1)(a)) (1998). As one commentator explains:

The Michigan choice was that children needed someone to confide in since they have no one else, typically not even a therapist, who is permitted by law to keep their secrets if those secrets include a suspicion of harm or risk of harm to the children. The parade of horrors of children disclosing abuse to their lawyers who could not report the abuse without the child's permission was thought remediable or worth the cost. Through the lawyer-child counseling process, the lawyer-GAL might obtain the child's permission to disclose the secret or encourage the child to talk with and disclose to others.

Don Duquette, "Legal Representation for Children in Protection Proceedings," 34 Fam. L.Q. 441, 460 (Fall 2000). It is probably advisable for the GAL to explain to the child the circumstances under which the GAL would disclose information shared in confidence by the child.

14. See Tenn. Code Ann. §§37-1-129(e), 37-2-403, 37-2-406. As a condition of receipt of federal funds for children in foster care, DCS, rather than the committing juvenile court, must retain decision-making authority regarding the specific placement of a child in foster care. See 45 C.F.R. §1356.21(g)(3).

15. Attorneys representing children in both dependent neglect and unruly child proceedings should thoroughly familiarize themselves with the consent decree entered in Brian A. v. Sundquist,ýFed. Dist. Ct., M.D. Tenn., Civil Action No. 3-00-0445 (July 27, 2001), available at http://www.state.tn.us/youth/children/pdffiles/settlement.pdf. The 14 principles that govern departmental practice under the settlement provide a very useful touchstone to help shape appropriate individual permanency plans and against which to measure departmental actions.

16. S.Ct. Rule 13(2)(d), (e), (f) (2001 Amendments). Some members of the bar may not yet be aware of the current improved compensation rates. For guidance on how t¡o apply for compensation under these expanded compensation provisions, see Leslie Kinkead, "Compensation for Attorneys and GALs in Dependency and Termination of Parental Rights Cases," Volunteer Attorney Newsletter, Fall 2001, p. 10 (http://www.tba.org/committees/AcctoJus/accessmain.html).

17. See S.Ct. Rule 13(2)(d)(1)(D), (E) (2001 Amendments).

18. See, e.g., ABA Standards, B-1(7) ("Identify appropriate family and professional resources for the child"). The Commentary states that Section (7) contemplates that the child's advocate will identify counseling, educational and health services, substance abuse programs for the child and other family members, housing and other forms of material assistance for which the child may qualify under law. Because maintaining contact with family members, friends, teachers and other members of the child's community is often critical to ameliorating the trauma of being placed in foster care, identifying family and community members and ensuring continued contact with them is often, from the child's perspective, one of the most significant advocacy functions for the GAL.

19. ABA Standards, B-2, Commentary.

20. Id., B-4, Commentary.

21. See Jean Koh Peters, "The Roles and Content of Best Interests in Client-Directed Lawyering for Children in Child Protective Proceedings," 64 Fordham L.Rev. 1505, 1555 (1996).

22. See Mich. Comp. Laws §712A.17d (West 1998); Mich. Stat. Ann. §27.3178 (598.17d) (1998).

23. For a good discussion of the thoughtful reasoning behind each of these positions, see Don Duquette, "Legal Representation for Children in Protection Proceedings," 34 Fam. L.Q.441 (Fall 2000). See generally, "Ethical Issues in the Legal Representation of Children," 64 Fordham L.Rev. 1281-2132 (1996).

24. The national consensus is that the child's wishes are important and should be articulated to the court. See, e.g., Katherine Hunt Federle, "Children's Rights and the Need for Protection," 34 Fam. L.Q. 421, 435 (Fall 2000); Peters, note 14 supra; Duquette, note 16 supra; "Recommendations of the Conference on Ethical Issues in the Legal Representation of Children," 64 Fordham L.Rev. 1301 (1996); ABA Standards. Numerous jurisdictions, including those that have adopted a GAL model of representation, require the GAL to present the child's wishes or preferences to the court. In addition to Michigan, Duquette, supra note 16, at 462, other examples include Arkansas, Utah, Kansas, Virginia, Wisconsin, Maine and South Carolina. Federle, supra, at 435-36 & n. 68 & 69.

25. S.Ct. Rule 40(e). If the court refuses the GAL's request to appoint a separate advocate for the child, the guidelines require the GAL to ensure that any evidence supporting the child's position is presented to the court and that the child's wishes are presented to the court. See S.Ct. Rule 40(e)(3). Note the reference in Rule 40(e)(3) to "sub-section (b)" is an editorial oversight that occurred when, to conform with the format of other Supreme Court Rules, the section designations were changed from numbers to letters and the subsection designations changed from letters to numbers. The reference should be to "sub-section (e)(2)."

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The Seven Habits of Highly Effective Guardians ad Litem*

1. They meet and get to know the child right away.

2. They make sure the child understands the GAL's role.

3. They help the child prepare for proceedings (hearings, staffings or reviews) by explaining the purpose of the proceeding and eliciting the information and preferences the child wants to have presented.

4. During proceedings, they make sure the child client understands what is going on.

5. After proceedings, they discuss the outcomes and the child's options if he or she is dissatisfied.

6. They stay in contact with the child and make sure the child knows how to get in touch with them.

7. In gathering information, they speak directly with the important people in the child's life, including family members, teachers and therapists. They make sure those individuals know to contact the GAL if there are concerns about the child.

* These habits should be practiced in a developmentally appropriate manner. S.Ct. Rule 40(c)(2), (d)(3).

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Resources and training available

The Tennessee Supreme Court, through its Court Improvement Project, has developed materials and training for attorneys representing parties in neglect, abuse and termination of parental rights proceedings. The training is free (with a nominal processing charge for those who wish to receive CLE credits) and is offered periodically at locations across the state. In connection with the training, the Administrative Office of the Courts publishes a manual for practitioners, with "nuts and bolts" information on applicable state and federal law, practice tips and sample forms. Hard copies are available for $25, or the manual may be downloaded for free from the AOC web site: www.tsc.state.tn.us. For more information on the Court Improvement Project contact Leslie Kinkead, Court Improvement Coordinator, or Mary Rose Zingale, Court Improvement Specialist, at (615) 741-2687.

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Five simple ways juvenile court judges can help guardians ad litem

1. Include in the order appointing the GAL language that grants the GAL discovery and that authorizes (with certain limited exceptions) those holding otherwise confidential information about the child to release that information and discuss the child's situation with the GAL. A model form order containing this language can be obtained from the Court Improvement Project of the Administrative Office of the Courts.

2. At the time of the appointment, provide the attorney with a photocopy of the entire juvenile court file.

3. At each juvenile court hearing or review, while everyone is present in the courtroom and has his or her calendar with them, schedule the next review or staffing. This will ensure that the GAL will not have a conflict and will reduce the frequency of continuances and delays in scheduling the required reviews and staffings.

4. For GALs who are handling more than one case, in so far as possible, try to schedule hearings and reviews in those cases for the same days. It is much more efficient for attorneys to have three cases on the same day of the month than to have those three cases set on three different days of the month.

5. Designate a private area in the courthouse that GALs can use to speak with clients, witnesses and opposing counsel, so that discussions of these sensitive matters do not have to occur in public hallways.

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Tennessee Bar Association Juvenile and Children's Law Section

The Tennessee Bar Association has recently created a new Juvenile and Children's Law section. The chair of the section is Randall Haynes, Weeks, Anderson & Baker, and the vice-chair is David Kozlowski, assistant general counsel, Legal Aid Society of Middle Tennessee and the Cumberlands. For information contact Lynn Pointer, TBA sections and committees coordinator, at lpointer@tnbar.org.

Andy Shookhoff is associate director of the Child and Family Policy Center of the Vanderbilt Institute for Public Policy Studies (VIPPS) in Nashville.

Gusan L. Brooks is clinical professor of law at Vanderbilt Law School.