78A-6-902 - Appointment of attorney guardian ad litem -- Duties and responsibilities -- Training -- Trained staff and court-appointed special advocate volunteers -- Costs -- Immunity -- Annual report.
78A-6-902. Appointment of attorney guardian ad litem -- Duties andresponsibilities -- Training -- Trained staff and court-appointed special advocate volunteers-- Costs -- Immunity -- Annual report.
(1) (a) The court:
(i) may appoint an attorney guardian ad litem to represent the best interest of a minorinvolved in any case before the court; and
(ii) shall consider the best interest of a minor, consistent with the provisions of Section62A-4a-201, in determining whether to appoint a guardian ad litem.
(b) In all cases where an attorney guardian ad litem is appointed, the court shall make afinding that establishes the necessity of the appointment.
(2) An attorney guardian ad litem shall represent the best interest of each child who maybecome the subject of a petition alleging abuse, neglect, or dependency, from the earlier of theday that:
(a) the child is removed from the child's home by the division; or
(b) the petition is filed.
(3) The director shall ensure that each attorney guardian ad litem employed by the office:
(a) represents the best interest of each client of the office in all proceedings, includingcourt proceedings;
(b) prior to representing any minor before the court, be trained in:
(i) applicable statutory, regulatory, and case law; and
(ii) nationally recognized standards for an attorney guardian ad litem;
(c) conducts or supervises an ongoing, independent investigation in order to obtain,first-hand, a clear understanding of the situation and needs of the minor;
(d) (i) personally meets with the minor, unless:
(A) the minor is outside of the state; or
(B) meeting with the minor would be detrimental to the minor;
(ii) personally interviews the minor, unless:
(A) the minor is not old enough to communicate;
(B) the minor lacks the capacity to participate in a meaningful interview; or
(C) the interview would be detrimental to the minor; and
(iii) if the minor is placed in an out-of-home placement, or is being considered forplacement in an out-of-home placement, unless it would be detrimental to the minor:
(A) to the extent possible, determines the minor's goals and concerns regardingplacement; and
(B) personally assesses or supervises an assessment of the appropriateness and safety ofthe minor's environment in each placement;
(e) personally attends all review hearings pertaining to the minor's case;
(f) participates in all appeals, unless excused by order of the court;
(g) is familiar with local experts who can provide consultation and testimony regardingthe reasonableness and appropriateness of efforts made by the Division of Child and FamilyServices to:
(i) maintain a minor in the minor's home; or
(ii) reunify a child with the child's parent;
(h) to the extent possible, and unless it would be detrimental to the minor, personally orthrough a trained volunteer, paralegal, or other trained staff, keeps the minor advised of:
(i) the status of the minor's case;
(ii) all court and administrative proceedings;
(iii) discussions with, and proposals made by, other parties;
(iv) court action; and
(v) the psychiatric, medical, or other treatment or diagnostic services that are to beprovided to the minor; and
(i) in cases where a child and family plan is required, personally or through a trainedvolunteer, paralegal, or other trained staff, monitors implementation of a minor's child and familyplan and any dispositional orders to:
(i) determine whether services ordered by the court:
(A) are actually provided; and
(B) are provided in a timely manner; and
(ii) attempt to assess whether services ordered by the court are accomplishing theintended goal of the services.
(4) (a) Consistent with this Subsection (4), an attorney guardian ad litem may use trainedvolunteers, in accordance with Title 67, Chapter 20, Volunteer Government Workers Act, trainedparalegals, and other trained staff to assist in investigation and preparation of informationregarding the cases of individual minors before the court.
(b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained inand follow, at a minimum, the guidelines established by the United States Department of JusticeCourt Appointed Special Advocate Association.
(5) The attorney guardian ad litem shall continue to represent the best interest of theminor until released from that duty by the court.
(6) (a) Consistent with Subsection (6)(b), the juvenile court is responsible for:
(i) all costs resulting from the appointment of an attorney guardian ad litem; and
(ii) the costs of volunteer, paralegal, and other staff appointment and training.
(b) The court shall use funds appropriated by the Legislature for the guardian ad litemprogram to cover the costs described in Subsection (6)(a).
(c) (i) When the court appoints an attorney guardian ad litem under this section, the courtmay assess all or part of the attorney fees, court costs, and paralegal, staff, and volunteerexpenses against the child's parents, parent, or legal guardian in a proportion that the courtdetermines to be just and appropriate.
(ii) The court may not assess those fees or costs against:
(A) a legal guardian, when that guardian is the state; or
(B) consistent with Subsection (6)(d), a parent who is found to be impecunious.
(d) For purposes of Subsection (6)(c)(ii)(B), if a person claims to be impecunious, thecourt shall:
(i) require that person to submit an affidavit of impecuniosity as provided in Section78A-2-302; and
(ii) follow the procedures and make the determinations as provided in Section78A-2-304.
(7) An attorney guardian ad litem appointed under this section, when serving in the scopeof the attorney guardian ad litem's duties as guardian ad litem is considered an employee of thestate for purposes of indemnification under Title 63G, Chapter 7, Governmental Immunity Act ofUtah.
(8) (a) An attorney guardian ad litem shall represent the best interest of a minor.
(b) If the minor's wishes differ from the attorney's determination of the minor's bestinterest, the attorney guardian ad litem shall communicate the minor's wishes to the court inaddition to presenting the attorney's determination of the minor's best interest.
(c) A difference between the minor's wishes and the attorney's determination of bestinterest may not be considered a conflict of interest for the attorney.
(d) The court may appoint one attorney guardian ad litem to represent the best interestsof more than one child of a marriage.
(9) An attorney guardian ad litem shall be provided access to all Division of Child andFamily Services records regarding the minor at issue and the minor's family.
(10) An attorney guardian ad litem shall maintain current and accurate records regarding:
(a) the number of times the attorney has had contact with each minor; and
(b) the actions the attorney has taken in representation of the minor's best interest.
(11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian adlitem are confidential and may not be released or made public upon subpoena, search warrant,discovery proceedings, or otherwise. This subsection supersedes Title 63G, Chapter 2,Government Records Access and Management Act.
(b) Consistent with Subsection (11)(d), all records of an attorney guardian ad litem:
(i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative SubpoenaPowers; and
(ii) shall be released to the Legislature.
(c) (i) Except as provided in Subsection (11)(c)(ii), records released in accordance withSubsection (11)(b) shall be maintained as confidential by the Legislature.
(ii) Notwithstanding Subsection (11)(c)(i), the Office of the Legislative Auditor Generalmay include summary data and nonidentifying information in its audits and reports to theLegislature.
(d) (i) Subsection (11)(b) constitutes an exception to Rules of Professional Conduct,Rule 1.6, as provided by Rule 1.6(b)(4), because of:
(A) the unique role of an attorney guardian ad litem described in Subsection (8); and
(B) the state's role and responsibility:
(I) to provide a guardian ad litem program; and
(II) as parens patriae, to protect minors.
(ii) A claim of attorney-client privilege does not bar access to the records of an attorneyguardian ad litem by the Legislature, through legislative subpoena.
Amended by Chapter 32, 2009 General Session
Amended by Chapter 161, 2009 General Session