The Guardian ad Litem Program – Expanding the Model and Meeting New Challenges
Florida guardian ad litem programs are facing an exciting period of growth and opportunity.1 The program has had a significant increase in its budget, and with the infusion of funds to hire additional program attorneys and case coordinators,2 has been able to increase its presence in court. Both the Governor’s Blue Ribbon Panel and the Florida Senate Judiciary Committee on the Legal Needs of Children have endorsed the guardian ad litem program as an important part of the solution for ensuring abused, abandoned, and neglected children are represented and protected in the judicial system. During the 2003 legislative session, a bill was passed to transfer the program from the judicial branch to the Justice Administrative Commission.3 This article will explore the current state of the program, its shift of primary focus to children in dependency proceedings, the challenge of balancing the necessity for the program and limited resources, and, finally, what lies ahead for the program.
The Program Today
Courts have long held the inherent authority to safeguard children and enjoy broad discretion in protecting their welfare.4 This authority extends to the court’s ability to appoint a guardian ad litem to represent the best interests of children.5 F.S. §39.822 (2003) requires that a guardian ad litem be appointed for all children who are alleged to be abused, abandoned, or neglected and involved in the court proceedings.6
The guardian ad litem program has served these children for more than 20 years. It is a volunteer-based program, with staff to recruit, train, supervise, and advise the volunteers. Each judicial circuit has a program consisting of a director, attorneys, case coordinators, and support staff. The staff of each program ranges in number from eight to 257 staff members who supervise thousands of volunteers throughout the state. Guardian ad litem volunteers undergo a background check and are required to participate in at least 30 hours of training.8 Each volunteer is assisted by a case coordinator and represented by a program attorney at legal proceedings. This structure was established by the State of Florida Guardian ad Litem Minimal Standards of Operation promulgated by the Florida Supreme Court to ensure quality representation of the best interests of children.9
Once appointed to a case, the guardian ad litem is responsible for collecting information concerning the child and charged with presenting a full picture of the child’s circumstances to the court. The guardian ad litem consults with people in the child’s life, including relatives and custodians as well as teachers, therapists, doctors, case workers, and other professionals. The guardian ad litem is responsible for ascertaining the child’s wishes and is required by statute to report them to the court. However, the guardian ad litem is not directed by the child. Rather, the guardian ad litem’s duty is to obtain and present all information relevant to the child’s best interests.
The guardian ad litem observes visitation between the child and the parents while also visiting the child in his or her home and school environments. The guardian ad litem assimilates the information gathered and, with the assistance of GAL program staff, makes recommendations as to what is in the child’s best interests. bringing forth information and presenting an unbiased report with recommendations, the guardian ad litem can assist the court in making decisions to protect the child. The guardian ad litem program staff and volunteers work as a team, allowing case coordinators and program attorneys to fill in the gaps, and ensuring that as many children as possible have an advocate for their best interests at each stage of the dependency proceeding as governed by F.S. Ch. 39.
The significance of the guardian ad litem’s function in dependency proceedings is illustrated in several sections of Ch. 39, which require the court to consider the recommendations of the guardian ad litem as to what is in the best interests of the child. For example, F.S. §39.810(11) (2003) requires the court to consider the best interests of the child when making a decision as to whether the parental rights of the child’s parent should be terminated and specifically requires the court to consider “recommendations for the child provided by the child’s guardian ad litem or legal representative.”10 Similarly, F.S. §39.622 (2003) allows the court to place a child in long-term relative or nonrelative care if 10 conditions are met, one of which includes consideration of the recommendation of the guardian ad litem.
Shifting Focus to Dependency
While guardians ad litem may be appointed in family and criminal law cases, all of Florida’s guardian ad litem programs are focusing the majority of their resources on the abused, abandoned, and neglected children involved in dependency proceedings because these are the children at greatest risk.11 In dependency cases, the program is governed by F.S. Ch. 39 and the Guardian ad Litem Standards of Operation, as approved by the Florida Supreme Court. While other chapters of Florida Statutes reference the guardian ad litem’s powers and authority, such as in §§61.403 and 914.17, these sections do not apply to dependency cases, which are governed by Ch. 39.12
The roles of the guardian ad litem and the court differ in proceedings under Ch. 61 and Ch. 39. Presumably, children in Ch. 61 proceedings have parents who adequately provide for their care, safety, and protection, while children in Ch. 39 proceedings must be protected by the state. This fundamental difference affects the role of the court and all parties in the case, particularly the guardian ad litem. Advocating for the best interests of children who have been abused, abandoned, or neglected, and working with the court and other parties to ensure the safety and welfare of children, is qualitatively different from making a best interests recommendation in a dissolution proceeding between two parents without dependency issues.13 The Third District Court of Appeal affirmed this principle in O’Connor v. State, 680 So. 2d 1137 (Fla. 3d DCA 1996). In O’Connor, the court held that the statute governing the authority of the guardian ad litem in dissolution, modification, parental responsibility, custody, or visitation cases did not apply to proceedings under Ch. 39.
There are many examples in the plain language of the chapters that illustrate the distinction between the chapters and the inapplicability of Ch. 61 to Ch. 39 cases. For example, the first purpose of Ch. 39 is “[t]o provide for the care, safety, and protection of children in an environment that fosters healthy social, emotional, intellectual, and physical development; to ensure secure and safe custody; and to promote the health and well-being of all children under the state’s care.”14 In contrast, the stated purpose of Ch. 61 is “(a) [t]o preserve the integrity of marriage and to safeguard meaningful family relationships; (b) [t]o promote the amicable settlement of disputes that arise between parties to a marriage; and (c) [t]o mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.”15
Another example can be found regarding the filing of reports by the guardian ad litem. Ch. 39 requires the guardian ad litem to file a report 72 hours before the dependency proceeding,16 while Ch. 61 requires filing 20 days prior to the family law proceeding.17 Clearly, the 20-day requirement does not apply in dependency proceedings, as dependency cases are usually in a state of constant flux and a report filed 20 days prior to a court hearing would most likely be moot by the time of the dependency hearing.
Balancing Necessity and Limited Resources
The guardian ad litem is the only party that solely represents the best interests of the child. While the interests of other parties may overlap or be consistent with the child’s best interests, none are required to give the child’s best interests priority.18 Because the guardian ad litem is the only party with the time and resources to access and consider all the information regarding the child, the guardian ad litem is often the party with the most creative and appropriate solution to many of the complicated issues dependency courts face, such as placement of a child, behavior problems of the child, or visitation schedules.
In addition to the appointment of guardians ad litem, courts throughout the state are appointing attorneys ad litem in certain dependency cases as a result of funding allocated in 2002. While specific guidelines have not been developed for attorneys ad litem representing children, the legislature outlined certain requirements for attorneys representing children through the Attorney ad Litem Pilot Project.19 As outlined in the statutes governing this pilot project, attorneys ad litem represent the child’s wishes for purposes of proceedings under Ch. 39.20 In all circumstances, the attorney ad litem must fulfill the same duties of advocacy, loyalty, confidentiality, and competent representation as are due an adult client.21 Unlike the guardian ad litem, the attorney ad litem answers only to his or her child-client and has no obligation to report to the court. Under the pilot project, a guardian ad litem must be appointed whenever an attorney ad litem is appointed.22 This recognizes the possibility that the wishes of the child could differ from an assessment of what is in a child’s best interests. While the appointment of an attorney ad litem ensures the child has someone advocating for his or her position in court, it is only the guardian ad litem who is responsible for advocating for the child’s best interests. Moreover, the guardian ad litem is required to inform the court of the child’s wishes,23 so the child’s desires should be known to the court, regardless of the appointment of an attorney ad litem.
The value and uniqueness of the services provided by the guardian ad litem program result in great demand for the program. The experience of the program has consistently been that the demand for guardian ad litem representation exceeds the ability to provide this service due to limited resources. In a concurring opinion to S.D. v. State, 670 So. 2d 1099 (Fla. 2d DCA 1996), Judge Altenbernd praised the “very valuable function” guardians ad litem serve but also opined, “Until the people of this state implement a program that provides an adequate supply of guardians ad litem, the statutory mandates will remain unenforced and our children will be insufficiently protected.”24 The number of children coming into the dependency system has increased steadily during the more than 20 years the program has operated, and the disparity between judicial appointments to the program and the ability of the program to assign the cases to guardians ad litem has become even more pronounced. Neither the funding for the program nor the volunteer pool experienced the same level of growth. As a result, the program has been unable to represent all of the abused, neglected, and abandoned children in Florida.
Future of the Program
Recognizing the program’s inability to meet current statewide need, the Supreme Court Family Court Steering Committee established the Models of Representation Workgroup in 1999 to review the program’s mission and model of representation, in order to develop strategies to improve representation of dependent children. The workgroup ultimately recommended a blended model of representation to ensure that all children are assigned either a staff or volunteer guardian ad litem. In recognition of the historical lack of volunteers, as well as the growing complexity of dependency proceedings, the recommended model shifted from the traditional volunteer-driven model to one that relies more on staff for advocacy on behalf of children. The workgroup acknowledged that additional funding would be required to attain these goals.
These principles ensure a voice for children at all proceedings, and increase consistency and accountability of the program as a whole. The new model builds on the strengths of the volunteer model and utilizes a team approach for each case. The team, which is made up of an attorney, a case coordinator, and a volunteer, divides the tasks of the case among themselves based on their area of expertise. The program attorney attends all court hearings, depositions, and other events where legal support is needed. The case coordinator and volunteer work together and separately to visit the child, gather information, prepare reports, and attend hearings.
Recognizing the lack of adequate resources, the legislature has appropriated additional resources to the GAL program over the last few years. In 2002, the legislature appropriated 137 new positions, including approximately 30 attorneys and 70 case coordinators. With this funding, the programs are striving to implement the blended model of representation to provide enhanced advocacy for more children.
With the program’s strong background, its emphasis on dependency cases, the introduction of additional funds, and the formation of a state office, the program is positioned to make significant strides in the quality of representation and the number of children represented by the program. Despite an increase in staff, however, the program continues to struggle with overwhelming caseloads and limited resources.25 If all of Florida’s abused, abandoned, and neglected children are to have a guardian ad litem to protect their best interests, the legislature and the voters will have to commit to continuing adequate funding. While volunteers will continue to be the heart of the program, the staff and resources must expand to meet the ever rising number of dependent children. Without a continued focus on enhancement of the guardian ad litem program, Florida’s most damaged and fragile children could remain unprotected. q
1 In 1990, each of the 20 circuits had one program attorney to represent it. The legislature recognized the lack of adequate resources, and now in 2003, the GAL program has approximately 77 attorneys divided among the circuit programs. This increase has reduced caseloads and allows the attorneys to be present at most court proceedings to monitor statutory time frames, engage in motion practice, and otherwise advocate for the program’s recommendations related to the child’s best interests.
2 Case coordinators oversee the casework activities of volunteer guardians ad litem and may perform the statutory duties of the guardian ad litem. allowing staff to serve as the guardian ad litem, the program can provide representation to children when a volunteer is not available.
3 Although currently part of the court system, the program must be transferred as part of the implementation of Revision 7 to Article V of the Florida Constitution. House Bill 439, effective July 1, 2003, transfers it on January 1, 2004, to a newly formed statewide office that will be administratively supported by the Justice Administrative Commission.
4 Brown v. Ripley, 119 So. 2d 712 (Fla. 1st D.C.A. 1960).
5 Simms v. State, 641 So. 2d 957 (Fla. 3d D.C.A. 1994), Fla. Stat. §39.822(1), 39.4085(20) (2002).
6 While the program may initially be appointed to most dependency cases, due to limited resources and available volunteers, the program can only remain appointed to those children at greatest risk.
7 These figures include only those positions funded by the state. Some circuit programs have additional staff funded locally and through grants.
8 Volunteers must also be 19 years of age or older, complete an application and interview process, and provide photo identification and two positive character references.
9 The current standards of operation were adopted on April 22, 2003.
10 Fla. Stat. §39.810(11) (2003).
11 While certain circuit programs continue to accept appointment to family and criminal law cases, the majority of GAL programs focus on dependency cases.
12 In an earlier article, the author applied Ch. 61 and family law cases to the guardian ad litem’s role in dependency cases. Michelle Johnson-Weider, Guardians ad Litem: A Solution Without Strength in Helping Protect Dependent Children, 77 Fla. B.J. 87 (Apr. 2003). One of the goals of this article is to clarify what this author believes to be a common misapplication of ch. 61 and family law case law to dependency proceedings
13 Dissolutions and custodial disputes sometimes involve overlapping dependency issues. Presumably, such cases would be referred to dependency court.
14 Fla. Stat. §39.001(1)(a) (2003).
15 Fla. Stat. §61.001(2) (2003).
16 Fla. Stat. §39.822(3) (2003).
17 Fla. Stat. §61.403(5) (2003).
18 For example, the responsibilities of the Department of Children and Families to a child and his or her family are dictated by state and federal law, and differ depending on the circumstances of the case. Parents and their attorneys are also committed to their own objectives, usually that of obtaining reunification, regardless of whether it is in the best interests of the child. Attorneys ad litem must present only the child’s wishes, and they could be prohibited from disclosing information to the court if the child so desires. Therefore, the guardian ad litem is the only party who is bound to provide unbiased information to the court and advocate for the best interests of the child at each stage of a dependency proceeding.
19 Fla. Stat. §39.4086 (2002) refers to the Attorney Ad Litem Pilot Project, which no longer exists due to the elimination of funding by the Florida Legislature.
20 Fla. Stat. §39.4086 (2002).
21 Fla. Stat. §39.4086(2)(g) (2002).
22 Fla. Stat. §39.4086(2)(f) (2002).
23 Fla. Stat. §39.807(2)(b)1 (2003).
24 S.D. v. State, 670 So. 2d 1099, 1102 (Fla. 2d D.C.A. 1996).
25 For example, the Department of Children and Families typically has two to three times the number of attorneys handling the same caseload as guardian ad litem program attorneys.
Mary K. Wimsett graduated from Vanderbilt University, cum laude, with honors in English. She graduated from the University of Florida College of Law with honors. Ms. Wimsett was a program attorney for the Second Judicial Circuit guardian ad litem program and is currently employed by the Eighth Judicial Circuit guardian ad litem program.