The following is a portion of the Final Report of the State Bar of Michigan Children's Task Force. This portion contains the Guidelines For Advocates For Children In Michigan Courts. This material has been copied verbatim from pages 62 through 97 of the Final Report, with HTML links added for ease of navigation. The material has been divided into three sections:
Contents of this Section
Introduction - Definitions - Assumptions - Qualifications - Role - Duties
Part One: Guidelines for Attorneys, CASAs, and Special Advisors in Child Protection, Guardianship and Child Custody Proceedings, with Commentary
INTRODUCTION
These guidelines set out the duties of the advocate for the child in child protection, guardianship, and child custody proceedings. The guiding principle behind these guidelines is the belief that children require competent, independent representation in proceedings in which they are a party or the subject of action. Current law does not mandate such representation in all instances and often depends on other participants in proceedings to protect and address the needs of children.
Both federal and state statutes require that children be independently represented in civil child protection cases. All states currently require the appointment of an independent advocate for the child in protection cases. Michigan permits but does not require appointment of an advocate for the child in guardianship and child custody cases. Beyond the appeal to federal law and state practices in child protection cases, however, there are fundamental common sense reasons for independent child advocacy which underlie the Task Force's basic premise.
A child faced with any bureaucracy -- a school, a hospital, or the child welfare system -- needs someone to guide him or her through the complex system. The child needs an advocate. In most instances a parent is capable and legally responsible for the protection of the child's interests. In legal cases, however, where custody of the child is at stake, and the suitability of the parents to care for the child is often the question, parents cannot be depended upon to protect the best interests of the child or to look out for the needs of the child. In such cases, the child needs an independent advocate whose function, among others, is to help the child through the difficult process. By definition, fundamental aspects of the child's life are being threatened in these legal proceedings. The child could lose mother, father, sister, brother, extended family, school, or community. On the other hand, the child faces the prospect of harm at the hands of an unfit caretaker, or of systemic indecision as to what ought to happen to him or her. Children lack the capacity to speak for and care for themselves in these instances and someone else needs to speak and act on their behalf.
In many instances, courts have relied upon other participants in the process to look out for a child's interests. Despite good intentions, other participants may have divided loyalties and interests and may not be committed to ferreting out and promoting the interests of the child alone. A judge has the responsibility to do justice among all the competing interests. The social service agency (DSS or Friend of the Court) has responsibility for the entire family and often must allocate scarce and inadequate resources to many children. Neither the judge nor the social service agencies are continuously available to the child all the time and over time. For the same reason an adult would not go to a serious IRS audit without assistance or would not want one's own child hospitalized without a parent available to monitor the care provided -- the child caught up in the legal process needs a champion. That champion ought to be a competent and knowledgeable professional who is able to pursue the child's rights and interests in whatever forums are required.
The State Bar of Michigan Children's Task Force adopted these guidelines with several goals in mind. First, to propose a model for child advocacy in legal proceedings which would require independent representation of children's interests. Second, to define and outline the various roles and responsibilities of such advocates. Third, to alert practitioners, judges, referees, caseworkers, parents and juveniles of the standards and guidelines for competent child representation. Finally, to promote the training and education of judges, referees, lawyers, caseworkers and advocates in the specialized field of child representation in legal proceedings. The Task Force urges the dissemination and adoption of these guidelines by all parties involved in the representation of children in child protection, guardianship and child custody proceedings.
I. DEFINITIONS:
Legal Counsel - An attorney who serves as the legal advocate for the child.
CASA - A Court Appointed Special Advocate, a lay volunteer who is selected, trained and supervised according to the standards of the National CASA Association and these guidelines and who is appointed to advocate for the best interests of the child.
Guardian Ad Litem (GAL) - An attorney, appointed by the court to represent the best interests of the child.
Attorney - A person licensed to practice law in the state of Michigan.
Special Advisor - Any person appointed by the court to assist the court in determining the child's best interests
Commentary
Section I generally
Poor definition of terms causes at least part of the confusion in any discussion of child representation. Thus, these guidelines begin with a definition of terms. Current law does not fully define the role of a lawyer once appointed to represent a child.(fn-2) In the above definitions, there are several important distinctions between legal counsel and guardian ad litem (GAL). Although both roles are filled by an attorney, the GAL advocates for the best interests of the child as an arm of the court while legal counsel for the child serves in a traditional attorney-client relationship. Thus, legal counsel advises and counsels the child; advocates zealously for the interests of the child as identified by the child; is covered by full attorney-client privileges; and although an officer of the court, is not an arm of the court. Unlike the guardian ad litem, legal counsel, under current law, is not covered by judicial immunity for his or her actions in furtherance of his or her representation of the child.
II. ASSUMPTIONS
In child protection proceedings, Michigan law will require appointment of an attorney to represent the child as a GAL except in circumstances described in Section IV.A.(7) governing appointment of legal counsel. In addition, the court may appoint a CASA or special advisor.
In guardianship and child custody actions, the court is encouraged to appoint an advocate for the child.
Commentary
Section II generally
It is assumed that when the court appoints an attorney, the court will initially assign a child a GAL. Legal counsel will normally only be assigned if the GAL requests one according to the standards set forth in Section IV.A.(7). Of course, the court always retains discretion to appoint legal counsel and/or other child advocates as it sees fit.
Section II B.
Though it should not be made a requirement, courts should appoint attorneys as child advocates whenever possible. The Task Force realizes there are good reasons to allow courts the discretion to call upon non-attorneys to assist the court. Many courts currently have budgetary limitations and do not have enough money to pay for attorney GALs in all cases. Having an attorney as GAL is important, however. A child's interests are potentially affected in all legal proceedings. Attorneys are trained to protect and pursue the child's interests in legal proceedings and are able to initiate and pursue remedies and matters in other courts and/or administrative forums. Without an attorney GAL, a child's interests may be negatively affected during legal proceedings.
III. QUALIFICATIONS
Attorneys
The court is encouraged to appoint attorneys either as legal counsel or GAL for a child who are adequately qualified to represent children. The State Bar of Michigan, law schools, Michigan Judicial Institute and providers of continuing legal education are encouraged to provide training for attorneys. Qualifications for children's attorneys shall include experience and/or training in the following:
The attorney is encouraged to engage in ongoing training in the subjects listed in Section III.A(1).
The State Bar of Michigan Juvenile Law Section and Family Law Section is encouraged to develop a reading list of suggested books, articles, periodicals and journals which deal with the specialized issues in child advocacy law and practice and make it available to all for a minimum cost.
Attorneys for children are encouraged to join and participate in at least one professional group or organization that will be a resource for needed information. Such groups include the National Association of Counsel for Children, local interdisciplinary groups between lawyers and the other professionals that work in the child advocacy area of practice and the family law, probate or juvenile sections of the State Bar of Michigan or local bar associations.
Attorneys are urged to acquire knowledge of the child's culture and ethnic background, as well as age related abilities. Attorneys should have regular, face to face contact with the child and either speak the child's language or have an interpreter assigned.
Commentary
Section III A. generally
Children are a special class of client. They do not hire or fire their advocates. For this reason, it is especially important that those appointed to advocate on behalf of the child have sufficient training. Training is needed for child advocates due to the unique needs of children and power imbalance between attorney and client. Michigan law has no special requirements for those who serve as advocates for children. As a result, in many cases advocates do not understand the special needs of children, and the quality of the advocacy is impaired. These guidelines encourage the courts to ensure that each child advocate possess at least minimal training in the special needs of children, but do not propose any enforcement mechanism to ensure the training is completed.
The Task Force encourages the establishment of a mentor program where experienced child advocates are available to newer ones for consultation. Preferably the experienced attorney should come from the same jurisdiction, although if none make themselves available, experienced attorneys from other jurisdictions should be used.
B.CASAs
CASAs should be knowledgeable about a child's culture and ethnic background, as well as age related abilities. The CASA should have regular, face to face contact with the child and be able to speak the child's native tongue or have an interpreter assigned.
The CASA must be objective and independent.
The CASA must be carefully screened before appointment according to the guidelines of the National CASA Association (NCASAA) and receive adequate training as established by the Michigan Association of CASA's (MACASA) on issues related to the performance of CASA duties as set forth therein. CASA's should receive ongoing training throughout their appointment.
Commentary
Section III B. 2.
CASA's should have no conflicts of interest that interfere with his or her ability to act on behalf of the best interests of the child. Thus, the CASA should have no ties to any of the parties in a given case. A CASA must immediately remove himself or herself from a case after deciding objective and independent service may be impaired.
IV. ROLE DEFINITION OF THE CHILD ADVOCATE
Guardian Ad Litem
Best Interests. A GAL represents the child's best interests. The GAL may collaborate with a CASA or other professionals such as a social worker or psychologist. The court shall appoint a GAL rather than legal counsel for a child except under circumstances falling within Section IV.A.7.
Legal Representative of the Child. The GAL serves as the independent legal representative of the child's best interests entitled to full and active participation in all the proceedings and access to all relevant information regarding the child. The GAL is obliged to conduct a full and thorough independent investigation, forming a position as to the best interests of the child and advocating for that position to the court.
No confidentiality or privilege as to the court. Attorney-client or any other privilege shall not prevent the GAL from sharing all information relevant to the child's best interests with the court. The file of the GAL shall not be discoverable.
Testimony. A GAL may file pleadings or papers setting forth his or her position as to the best interests of the child with the court and may independently call witnesses on behalf of the child. However, a GAL shall not testify. CASAs may be called as witnesses.
Immunity. The GAL, functioning as an arm of the court, is afforded immunity against ordinary negligence for actions taken in furtherance of his or her appointment.
Wishes of the Child. The GAL shall make a determination as to the best interests of the child and advocate for the best interests as the GAL sees them regardless of whether that determination reflects the wishes of the child. The wishes of the child are relevant to the GALs determination of best interests and shall be weighed according to the competence and maturity of the child. In any event, the GAL shall inform the court as to the wishes and preference of the child.
Appointment of Legal Counsel for the Child. A child is entitled to explain what he or she believes is in his or her best interests. The GAL shall ask the court to appoint legal counsel for the child if the wishes of the child, even after discussion with the GAL, are inconsistent with the GAL's view of the child's best interests. Disagreements between the child and the GAL shall promptly be brought to the attention of the court by the GAL so that the court may take any action it deems appropriate. If the court appoints legal counsel for the child, the court, in its discretion, may continue the GAL appointment to represent what the GAL believes to be in the child's best interests.
Commentary
Section IV A. 2.
The GAL shall have the right to and should actively participate and be included in all aspects of litigation including, but not limited to, discovery, motions practice, settlement negotiations, court appearances, jury selection, presentation of evidence and appeals.
Section IV A. 3-6
The child-client may not fully appreciate the distinction between a GAL and an attorney. For this reason, the GAL should inform the client in the best way possible of his or her role, particularly highlighting the unique role of the GAL. The GAL should tell the child that his or her position as to the best interests of the child may not coincide with the child's own view, and the child should be made aware that the GAL may provide the court with information normally protected by attorney-client privilege. A good practice when dealing with a child able to understand, is to tell the child that the GAL could share information freely with the court and others but will not disclose certain information without telling the child first.
The GAL's client is the child. Due to the special needs of the child and the court in proceedings with children, the relationship between the GAL and client is somewhat different than traditional lawyer/client relationships. Where this relationship is different is noted in the guidelines. These differences do not give the GAL the right to disregard other professional responsibilities. Thus, except where noted in the guidelines, the GAL is expected to obey the professional responsibilities as described in the Michigan Rules of Professional Conduct.
Section IV A. 4
This rule anticipates that the GAL may submit pleadings and/or recommendations to the court, but specifies that the GAL shall not testify. The Task Force believes that the factual basis of a GAL's report or recommendation must be established by testimony or other evidence. The GAL should provide recommendations based on facts reasonably expected to be in evidence.
Section IV A. 5
Immunity for GALs is essential to maintain their objectivity and independence. If a GAL fears being sued if one of the parties or anyone else does not like his or her recommendation, then it will be difficult for the GAL to maintain complete objectivity. Thus, GAL immunity is essential for the integrity of the process. (See Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir. 1984), but see Bullock v Hester, ____ Mich App ____, #165366; lv. granted, Michigan Supreme Court, Docket #103370.).
Immunity for GAL's should not be absolute, however. The immunity for GALs can be pierced when the GAL has not followed his or her minimal duties. The standard proposed is: The GAL does not possess immunity when the GAL's conduct amounts to gross negligence that is the proximate cause of injury or damage to the client. For this section, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
Section IV A. 6
In those cases where the GAL and child disagree as to the child's best interests, the GAL has an obligation to fully and objectively inform the court of the child's wishes.
Section IV A. 7
Disagreements between the child and the advocate regarding the goals of the advocacy do not occur frequently. When they do, special recognition must be made for the older, mature child in determining whether to appoint legal counsel. Legal counsel should be appointed by the court when two conditions are present:
The GAL-child relationship does not include attorney-client privilege (IV.A.3). The legal counsel, however, maintains a traditional attorney-client relationship with the child, including attorney-client privilege (see IV.C(1 & 2)). If the court terminates the appointment of the guardian ad litem and the same lawyer is appointed the child's legal counsel, the appointment as legal counsel creates an attorney-client relationship. Consistent with the policy in current MCR 5.201, the Task Force recommends that the attorney-client privilege relate back to the date of the appointment of the guardian ad litem --recognizing, of course, that information shared with the court during the period of appointment as GAL cannot be recalled. Thus, the legal counsel who was formerly the child's GAL may not share any information with the court that would have been privileged had the person been legal counsel at the time the information was imparted.
B. CASAs
CASAs are appointed to advocate for the best interests of the child. The CASA should be appointed as soon as possible in the proceedings and should remain involved until the child is in a legally sanctioned permanent placement and the case is dismissed by the court system. The CASA role during the initial stages of a case, prior to adjudication, is to gather facts related to the child's past and current situation, to determine what services have been previously provided to prevent foster care placement and to assist in identifying services necessary to meet the child's needs and to reunify the family.
In all cases the CASA and GAL shall collaborate to work for the best interests of the child. The GAL can file legal motions, request hearings before the court when the court's orders are not being followed or are determined not to be in the child's best interests, examine and cross examine witnesses and subpoena witnesses. The volunteer is entitled to receive copies of all requests for discovery and responses, copies of correspondence and other appropriate documents and participate in the proceedings.
The CASA shall have the same access to information related to the child and the child's situation as would the GAL for the child. Such information may include: records of Michigan Department of Social Services, law enforcement, the court, schools, public health, medical providers, substance abuse treatment and mental health history. The CASA shall also be allowed to interview the child, parents, social service staff, law enforcement personnel and any other individuals who have knowledge of the child.
The CASA, functioning as an arm of the court, is afforded immunity against ordinary negligence for actions taken in furtherance of his or her appointment.
Nothing shall prevent the CASA from filing a report directly with the court and/or requesting a hearing at any time.
CASAs may be called as witnesses at hearings concerning the child.
Commentary
Section IV B. 3
The GAL and the CASA should collaborate with a the goal of providing the best possible representation for the child. Each of the players, the attorney GAL and the CASA, bring separate strengths to the representation. CASAs are trained in investigating the child's past and current situation, while the attorney is trained in the intricacies of courtroom advocacy, legal proceedings, and ensuring the child's legal interests are protected. The Task Force envisions the GAL and CASA determining the child's best interests together.
Section IV B. 6
The Task Force believes that in most cases, the GAL and CASA will be in agreement as to the child's best interests. However, cases may arise where these advocates disagree as to a course of action. If this arises, both must still exchange all information just as if they were in agreement on the child's best interests. The CASA may be concerned about his or her ability to advise the court about his or her separate position. The CASA retains the right to file separate, independent reports directly with the court to accomplish this.
C. Legal Counsel
The child's legal counsel serves in a traditional attorney-client relationship with the child as governed by the Michigan Rules of Professional Conduct. The legal counsel serves as counselor and advisor to the child and assists the child in identifying his or her interests and in developing a position. Consistent with Rule 1.14 of the Michigan Rules of Professional Conduct (fn-3) legal counsel shall maintain a normal attorney-client relationship with the child as far as reasonably possible. The attorney appointed as the legal counsel for the child owes the same duties of undivided loyalty, confidentiality, and zealous representation of the child's expressed wishes as he or she would to an adult client. As a legal advocate for the child, the legal counsel does not enjoy quasi-judicial immunity and may be held liable for damages negligently caused.
D. Special Advisor
In each case, the duties of the special advisor will be determined by the judge. The special advisor, functioning as an arm of the court, is afforded immunity against ordinary negligence for actions taken in furtherance of his or her appointment. Special advisors will be available to be called as a witness to testify at any hearing involving the child. Special advisors have professional privileges abrogated only for the purposes of the hearing for which he or she was appointed.
V. DUTIES OF THE CHILD ADVOCATE
Except as provided above, child advocates shall perform the following duties. When a GAL and a CASA are assigned to represent and/or advocate for a child they shall each be responsible for discharging these duties.
GAL
Legal Counsel
CASA
Special Advisors
Commentary
Section V generally
Michigan law currently states only very broad duties of the child advocate (see Appendix A: MCL 722.630 and 712A.17c and MCR 5.201(c)). This section presents a more detailed description. This section is by no means supposed to represent an exhaustive list of the duties of a child advocate. Conversely, this represents the duties of the child advocate at the very minimum. Each case will present its own difficulties and challenges. Beyond the list presented here, the child advocate must do whatever is reasonably necessary to zealously advocate for the child's best interests.
Sections V A. 6, V B. 6, V C. 7, V D. 6
The Task Force understands that protracted contentious hearings over the child's best interests may itself not be in the child's best interests. Thus, the child advocate should seek cooperative resolution whenever possible. However, settlement of the case is not a goal in and of itself. A child advocate should only settle a case if he or she believes, given the totality of the circumstances, that the settlement furthers the child's best interests.
1 - A special thanks to Gregory Stanton who, as a third year law student at the University of Michigan Law School, Child Advocacy Law Clinic, contributed substantially to the drafting and development of this document.
2 - These guidelines cover three distinct types of proceedings: child protection, guardianship, and child custody. The Children's Task Force (CTF) understands that each type of proceeding represented unique problems and challenges for the child advocate. CTF believes there is no conflict in collapsing guidelines for all three types of proceedings into one document. CTF believes coordination among courts in children's cases is extremely important. CTF notes the current move towards unification of Michigan trial courts. Some jurisdictions are experimenting with a children's docket where one judge hears all cases affecting the welfare of a particular child. However it is done, it is imperative that legal proceedings regarding children are coordinated. These guidelines anticipate a time in which one child advocate will be chosen to represent a child in any and all proceedings affecting her or his interests.
3 - The text of that rule is as follows:
Rule 1.14 Client Under a Disability
(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority or mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.
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