II

Roles and Responsibilities of the Law Guardian/CASA Team

A. ROLE DEFINITION

Over the years, defining the role of the guardian ad litem (GAL) has generated much debate. Until recently, there has been little guidance for GALs appointed to represent children in deprivation cases partly due to the lack of a common definition. In 1996, the American Bar Association promulgated its Standards of Practice for Lawyers Who Represent Children. These standards state a preference for the traditional attorney/client relationship, but recognize that the GAL is an "officer of the court" appointed to represent the child's interests without being bound by the child's expressed preferences. American Bar Association, Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (Adopted February 5, 1996).

Guardians ad litem may and should ascertain the child's position in a "developmentally appropriate" manner and present the child's stated wishes in court. However, the GAL's recommendation is ultimately formulated after information has been collected from all sources, such as a CASA, the caseworker, the parents or legal guardian and their attorney, the child, other family members, witnesses, and any other evidence to be presented during the hearing. Under this model, the law guardian can remain an independent legal representative of the child's interests and can make objective recommendations to the court. The law guardian should work to provide the maximum amount of representation and services for each child in the system, focussing on the child's best interests.

The ABA recognizes that even when acting solely as attorney for the child, advocating for the child's preferences should not result in action that would be "seriously injurious to the child." Id. In striving to provide competent, ethical law guardian representation, the attorney must be willing to seek out multidisciplinary training opportunities, particularly in the field of child development. The law guardian has an ethical duty to give voice to the child's stated position, while ultimately rendering to the court a recommendation "in the child's best interest." Sadly, given the realities of the child welfare and judicial systems (too may cases, too few resources), the law guardian may not have any hope of achieving the truly best alternative for his/her client (e.g. "fixing" the abusive or neglectful situation so that the child can return home), and may be forced to seek the "least detrimental alternative." Goldstein, Solnit and Freud, In the Best Interests of the Child (1986).

Further complicating the work of the GAL is the over-burdened child welfare system and unrealistic caseloads. Often, law guardians carry prohibitively high caseloads that prevent them from even meeting all of their clients, let alone developing an ongoing advocacy relationship with them. An effective way our court addressed this last problem was to team the law guardians with trained CASA volunteers. While we recognize that many courts use either law guardians or CASAs, we strongly urge courts to use both as a team. The law guardian provides a legally trained voice for the child, and can enter the litigation arena with the license and skills to subpoena and examine witnesses (including the CASA), present evidence, formulate legal arguments, and explain to the child client the legal consequences of the court's actions. Again, this assumes that the law guardian has taken the time to become well versed in child development and skilled in communicating with child clients at various stages of development. Vasquez, Rosemary, L.C.S.W., Interviewing Children (National CASA presentation 1995)(Appendix 4).

The trained CASA, who is generally assigned to one or two cases, will have more time to devote to developing rapport with the child and thoroughly investigate the case. Bringing volunteers into the child welfare system allows the community's citizens to see their tax dollars at work, sheds light on the system, and keeps the system honest. It helps the other players rise above the bureaucracy for the sake of a child. In making decisions about the representation, the law guardian/CASA should ask him or herself the following seven questions:

1. Am I seeing the case, as much as I can, from my client's point of view, rather than from an adult's point of view?
2. Does the child understand as much as I can explain about what is happening in his/her case?
3. If my client were an adult, would I be taking the same actions, making the same decisions and treating him/her in the same way?
4. If I decide to treat my client differently from the way I would treat an adult in a similar situation, in what ways will my client concretely benefit from that deviation? Is that benefit one which I can explain to my client?
5. Is it possible that I am making decisions in the case for the gratification of the adults in the case, and not for the child?
6. Is it possible that I am making decisions in the case for my own gratification, and not for that of my client?
7. Does the representation, seen as a whole, reflect what is unique and idiosyncratically characteristic of this child?

Haralambie, Ann M., The Child's Attorney, supra at 37.