Wyo. Code R. 008-0001-2
Effective Date: 10/24/2008 to 02/21/2009
Rule Type: Expired Emergency Rules & Regulations
Reference Number: 008.0001.2.10242008
(a) These standards set forth the obligations of attorneys who contract with the Office, through its Program, and who are appointed, pursuant to 2008 Wyoming Session Laws Chapter 48, § 316, to represent the best interests of children as attorney guardians ad litem in child protection cases under W.S. §§ 14-3-101 through 14-3-440, children in need of supervision cases under W.S. §§ 14-6-401 through 14-6-440, or termination of parental rights actions brought as a result of child protection or children in need of supervision actions under W.S. §§ 14-2-308 through 14-2-319 and for an attorney appointed to serve only as a guardian ad litem in a delinquency action pursuant to W.S. § 14-6-216.
(b) Nothing herein shall be applied in a way that limits or compromises the child's right to counsel as outlined in a delinquency action.
(c) All attorneys who contract with the Office to provide GAL services for the Program pursuant to these Rules shall be admitted to practice law in Wyoming and shall be in good standing with the Wyoming State Bar.
(a) These Rules adopt the National Association of Counsel for Children (NACC) Recommendations for Representation of Children in Abuse and Neglect Cases 'Attorney Guardian ad litem Hybrid Model' and is the model referred to whenever 'attorney guardian ad litem' is set forth herein. This model provides an attorney to represent the child and instructs the attorney to represent the child's 'best interests.' Rather than taking direction from the client, as is the case in traditional attorney representation of adults, the attorney guardian ad litem is charged with forming the client's position by using his/her own judgment as to the child's 'best interests.' The attorney guardian ad litem is required to consider the child's wishes and preferences when determining the child's best interests, but he or she is not bound by them as in the traditional attorney-client relationship. If the attorney guardian ad litem determines that the child's expressed preference is not in the best interests of the child, both the child's wishes and the basis of the attorney guardian ad litem's disagreement must be presented to the court.
(b) Client Preferences. The Rules also consider the recommendations set forth in the American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (NACC Revised Version), especially when considering the client's preferences. The child's attorney should elicit the child's preferences in a developmentally appropriate manner, advise the child, and provide guidance, including explaining to the child what recommendations the GAL is going to make and why she is making them.
(a) Notwithstanding any additional conditions imposed by order of the court, an attorney guardian ad litem in a juvenile court case shall possess the knowledge and training necessary to perform the court appointment and shall be subject to all of the rules and standards of the legal profession.
(b) An attorney guardian ad litem appointed pursuant to this rule shall specifically:
(i) Establish and maintain competence of the applicable legal and ethical standards, including relevant court rules, federal and state law, case law, agency rules and regulations and local practice;
(ii) Be familiar with recognized standards and best practice procedures in child welfare, protection and juvenile matters, including those set forth in the American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1996), the American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (NACC Revised Version 1999) and NACC Recommendations for Representation of Children in Abuse and Neglect Cases;
(iii) Due to the high co-occurrence of child abuse/neglect and domestic violence, be familiar with the dynamics of domestic violence, the rate of co-occurrence between child abuse and domestic violence, the barriers to leaving a violent relationship and how domestic violence may affect children and their parents or caregivers, and how to determine if it exists in a particular case and how to competently account for it in case planning;
(iv) Conduct a full and independent case investigation in a timely manner, which shall include, at a minimum:
(A) Obtaining information about the child and the circumstances that led to the filing of the petition, which shall include obtaining copies of all pleadings and relevant notices;
(B) Meet with and observe the child's interaction with the caregivers, which includes meeting with and observing the child at home or in placement, even if a Court Appointed Special Advocate (hereinafter 'CASA') or other child or family advocate is, or has been, involved in the case;
(C) Personally meet with the child in a timely manner, even if a CASA or other child or family advocate is, or has been, involved in the case, unless the child's age and capabilities prevent it.
(D) Failure of the GAL to fulfill the requirements of (A), (B) and (C), above, will result in non-payment of the entire bill for the case, and may result in immediate termination of the contract.
(v) Insofar as is practical, counsel the child concerning the subject matter of the litigation, the attorney's role, the child's rights, the possible outcomes of each proceeding, and the consequences of the child's participation or lack of participation;
(vi) Prior to making a recommendation for out-of-home placement at a hearing, MDT or in the GAL Report, a GAL shall research and consider alternative community programs, treatments and family preservation services available to the family;
(vii) Independently identify and advocate for appropriate family and professional resources for the child and be familiar with the knowledge of experts and their possible input and role in the cases;
(viii) Participate in depositions, negotiations, discovery, pretrial conferences, multi-disciplinary team meetings and hearings, including review hearings;
(ix) Independently verify and advocate for timely resolution and permanent resolution (absent compelling reasons to the contrary) of the case;
(x) Make independent recommendations and take into consideration cost impacts and savings of potential service options, with an emphasis on community services most likely to preserve families, continued appropriate familial relationships and avoidance of out-of-home placement, when appropriate;
(xi) In recognition of federal law encouraging the presence of children at hearings in which they are the subject and in recognizing the best interests of the child, children should attend all significant court hearings unless for their best interests, they should be excluded. A decision to exclude the child from the hearing should be made based on a particularized determination that the child does not want to attend, is too young to sit through the hearing, would be severely traumatized by such attendance, or for other good reason would be better served by nonattendance. The lawyer should consult the child, therapist, caretaker or any other knowledgeable person in determining the effect on the child of being present at the hearing. The lawyer should also ensure that the state/custodian meets its obligation to transport the child to and from the hearing and ensure the presence of someone to accompany the child any time the child is temporarily absent from the hearing;
(xii) After the hearings, review the court's orders to ensure the written orders conform to the court's oral orders, as well as comply with statutorily required findings and notices;
(xiii) Monitor and advocate for timely implementation of the case and/or permanency plan, the court's orders and communicate with the responsible agencies; and
(xiv) Recognize that the obligation of the attorney guardian ad litem to the child is a continuing one and does not cease until the attorney guardian ad litem is formally relieved by court order or the court terminates its jurisdiction over the child. This continuing obligation includes any appeals that may result from the case in which the GAL has been appointed. In the event of an appeal, a GAL shall participate in the appeal as permitted by rule 7.13 of the Wyoming Rules of Appellate Procedure, and shall be reimbursed for this representation pursuant with the provisions of this rule. If the GAL is not able to represent the client in the appeal, the GAL must immediately notify the Director of the Program so she may find a suitable replacement. This continuing obligation also extends through termination of parental rights proceedings unless appointment of a new GAL is in the best interests of the child.
(c) A GAL's failure to do any of the foregoing may result in non-payment of bills and/or termination of the contract.
(d) Multidisciplinary team responsibilities. A GAL shall attend, in person, all pertinent multidisciplinary team ('MDT') meetings/hearings, in the child's best interests. A GAL shall participate, in the child's best interests, as a MDT member in reviewing the child's personal and family history, school records, mental health records and Department of Family Services records and any other pertinent information, for the purpose of making case planning recommendations. If a GAL cannot attend a MDT team meeting in person or by telephone, he/she shall submit written reports and recommendations to the other team members and to the court prior to the meeting. If a child has been placed outside the home, the GAL, in the best interests of the child and as a MDT member, shall meet quarterly with the other team members to review the child's progress and best interests. Any failure to attend a pertinent MDT team meeting/hearing may result in non-payment of bills and/or termination of the contract.
(a) Before the Office may contract with an attorney to provide attorney guardian ad litem services for the Program, the attorney must satisfy certain minimum qualifications in addition to training requirements set forth by these Rules.
(b) The Program will contract with and employ attorneys only from the ranks of qualified attorneys. Contracts, employment, appointments and assignments will not be made without regard to prior training or practice. Competence requires relevant training and experience. Attorneys contracted with, employed, appointed or assigned as attorney guardians ad litem pursuant to these Rules and the Program shall be subject to all of the rules and standards of the legal profession.
(i) Initial training. A lawyer shall not be qualified for an initial contract, employment, appointment or assignment (for placement on the GAL Panel) pursuant to these Rules and the Program unless the attorney has received within the two (2) years prior to applying for certification with the Program, ten (10) or more live hours of child related training accredited by the Wyoming State Bar, or the attorney otherwise provides evidence acceptable to the Administrator that he or she has recent training, experience, or both, which is reasonably equivalent.
(A) The Program Director will decide on a case-by-case basis what constitutes 'child related training.'
(B) Any training offered by the NACC or the Program constitutes child related training.
(C) If an attorney is removed from the GAL Panel after their initial training for a period of two (2) years or more, they must again complete the required initial ten (10) hours of training before being reinstated on the GAL Panel.
(D) This paragraph does not apply to paragraph (C) or (D) below.
(E) This paragraph also does not apply to the law students supervised and practicing under faculty attorney supervisors at the University of Wyoming College of Law Clinics. It does apply to the faculty attorney supervisors.
(ii) Continuing training. In order to remain on the GAL Panel and be eligible for appointments, the attorney GAL shall obtain five (5) live hours of continuing legal education per legal education reporting year. These five (5) live hours shall be child related training and relevant to an appointment in Juvenile Court proceedings.
(A) The Director has the additional authority and discretion to require all Program GALs to obtain training in addition to the minimum five (5) hours of continuing legal education when necessary.
(B) This paragraph also does not apply to the law students supervised and practicing under faculty attorney supervisors at the University of Wyoming College of Law Clinics. It does apply to the faculty attorney supervisors.
(c) Successful completion of the University of Wyoming College of Law's Children and Law course (or equivalent thereof). Any attorney who has, while in law school, successfully completed the Children and the Law course at the University of Wyoming College of Law, or an equivalent course there or at another ABA accredited law school, will be deemed to have fulfilled the ten (10) hour initial training set forth in paragraph (i). This shall apply retroactively.
(d) Persons having successfully completed their second year of law school may also attend any training and may count any training toward the Program's requirement found in paragraph (ii). Nothing in these Rules supersedes any State Bar licensing requirements or State Bar rules, regulations, policies or procedures.
(e) The Program shall ensure annual Continuing Legal Education (CLE) guardian ad litem training is available for all interested attorneys.
(a) Application process. Any attorney who desires to contract with the Office to provide attorney guardian ad litem services for the Program may submit at any time a completed application to the Director. The application is available on the Program's website. Every completed application must be accompanied by a signed release of information authorization sufficient to enable the Administrator to independently verify the facts set forth in the application and freely check into the applicant's background and qualifications.
(i) The Office is not limited to contracting only with those attorneys who apply in the future. The Office may contract with those attorneys who already have an 'expression of interest' form on file with the previous GAL Program, and who have previously provided guardian ad litem services for that program.
(ii) Any attorney who previously provided an application to the prior GAL Program, but who has failed to maintain the continuing training requirements, or is otherwise presently unqualified under these Rules, must re-apply.
(iii) The Office may contract with the University of Wyoming College of Law's Clinics to provide GAL services on a non-fee basis.
(b) Screening process. Before an applicant is approved by the Administrator for inclusion on a list of guardians ad litem maintained pursuant to these Rules and any court rules:
(i) the applicant shall be admitted to practice law in Wyoming and shall be an attorney in good standing with the Wyoming State Bar; and
(ii) the applicant's continuing legal education credits shall be verified by the Administrator and the Wyoming State Bar.
(c) List of approved guardians ad litem. The Administrator shall maintain a list of qualified attorneys with whom it has contracted and from which courts may make appointments of attorney guardians ad litem. The Administrator shall keep the list current to reflect the addition of newly qualified attorneys and the deletion of attorneys who have not met the continuing training requirements set forth in Ch. 2, §4. An attorney must submit an updated affidavit (contained within the application) to the Administrator every year to ensure that she or he is maintaining her or his qualifications for such appointments. The Administrator shall post the list (certified GAL Panel) on the Program's website.
(d) Factors to be considered in selection. All pertinent factors shall be considered by the Office in the identification and selection of the attorney guardian ad litem to be contracted with or employed. To be contracted with or employed, a guardian ad litem must meet the minimum qualifications set forth in Ch. 2, §4 and any pertinent court rules, must have no conflict of interest regarding the case, and must be listed on the list of approved guardians ad litem maintained by the Administrator pursuant to these Rules.
(e) Appointment order; specification of duties. An attorney guardian ad litem shall not be appointed or serve except upon written order of the court. Once the court has appointed a Program GAL to a case, the Program is deemed to have been appointed. It is recommended that the court's order will set forth: the role of the guardian ad litem; the specific duties to be performed by the guardian ad litem in the case; deadlines for the completion of the duties set forth; and the duration of the appointment. Notwithstanding a court's order or any pertinent court rule or state statute, the Director shall oversee the appointment. Any attorney appointed by the court that is not on the Program's list described in paragraph (c) will not be reimbursed or compensated by the Program.
(f) Support, advice, and supervision. The Administrator shall maintain a list of resources available in order to promote support, advice, and training to attorney guardians ad litem serving in the state. The Director, as well as any Supervisor at the direction of the Director, shall oversee the Program and all court-ordered appointments.
(a) In order to ensure that attorneys have adequate time to provide the investigation and advocacy necessary to secure appropriate outcomes for dependent children and their families, an attorney appointed pursuant to this rule shall maintain a reasonable caseload, as set out below.
(b) An attorney who contracts with, or is employed by, the Office to perform attorney guardian ad litem services on a part-time basis shall not carry more than forty (40) juvenile court cases, including juvenile delinquencies, and an attorney who contracts with, or is employed by, the Office on a full-time basis shall not carry more than eighty (80) juvenile court cases, including juvenile delinquencies. The Program will strive to keep caseloads below the maximum. Each GAL's caseload will be monitored by the Director and their cases will be weighted when assigning new cases. The following factors may be used by the Director when weighing caseloads: total workload (including non-GAL cases); case complexity; case difficulty; number of children; age of children; geographic placement of children; service needs of family; quality and aggressiveness of opposing counsel; and the judge's practice rules and expectations.
(c) All supervisory guardians ad litem shall maintain a GAL caseload, not to exceed eighty (80) individual GAL cases, depending upon whether the supervisory guardian ad litem is employed by or contracted with the Office on a part-time or full-time basis, in addition to her supervisory duties.
(d) The Office reserves, in its sole discretion, the right to limit guardian ad litem appointments of a GAL when that GAL's other obligations interfere with his or her ability to provide proper guardian ad litem services. This reservation of right applies to all caseloads, even those under the caseload limits.
A private attorney who is contracted with or employed by the Office under the provisions of the Public Defender Act, WYO. STAT. ANN. §§ 7-6-101 et seq., to provide public defender services may be contracted with or employed to provide legal representation as attorney guardians ad litem in child protection and children in need of supervision cases if the contract is separate from the attorney's service as a state public defender and does not result in a conflict of interest.
If a GAL determines that expert services are needed in a case, the GAL shall first determine whether the Department of Family Services will pay for that service. If the GAL determines that the expert service needed is not one that the Department of Family Services pays for, the GAL should then provide the Director with a written request for such expert services, explaining why the services are needed, who will be providing that service, and how much it will cost. The Director shall then determine which requests are reasonable and shall approve or deny on that basis.
A GAL must get prior approval from the Director before incurring any out-of-state travel expense. Failure to request and receive prior approval will result in non-payment of travel expenses.
The Program shall establish a policy regarding individual GAL complaints. Said policy will be posted on the Program website and available to every individual that requests it. No formal complaint will be accepted anonymously. The GAL will have an opportunity to respond to the Program regarding the complaint, and the Director will be responsible for investigating all formal complaints submitted.