GALs Have Questions; Legal Aid Has Answers
For a pro bono attorney, serving as a Guardian ad Litem for dependent children can come with a
lot of questions. It’s a new area of law, an unfamiliar role, and the hearings are even held in a
different courthouse. When you filled out your pro bono preference form, you were making
sure someone is always there to speak up for a child who has been abandoned abused or
neglected, but now you’re figuring out the mechanics of being that person. The good news is,
you’re not the first person to have these questions, and the staff at the Guardian ad Litem
program probably have an answer. This article covers just a few examples of the most common
questions we hear.
Do I have standing to ask for this in court?
As a Guardian ad Litem, you are actually a party to the dependency case. (F.S. 39.820(1)) So, the answer to this question is almost always ‘yes.’ If you believe an order of the court is necessary to ensure the safety or well-being of the child, you should ask for it. In fact, Florida Statute explicitly permits you to be the one to file a Termination of Parental Rights Petition, if you feel you need to. (F.S. 39.802(1)) GAL staff attorneys can assist you with the mechanics or assessing the likelihood the Court will grant your request, but you are well within your rights and responsibilities to advocate for anything you believe the child needs.
Who can I talk to?
Your role is to be a representative of the child and to gather information about any matters in the case so that you can make informed recommendations to the court. (F.S. 39.822 and F.R.J.P. 8.215) Generally speaking, you can talk to anyone that you believe has information you need. Both the statute and your Order of Appointment authorize that information be released to you, even if it is otherwise confidential. (F.S. 39.822(3)) Obviously, as an attorney, you can’t speak to a represented party without the agreement of their attorney. However, because the GAL’s role is well understood, the parent’s attorney will work with you to make arrangements for you to speak with their client in a manner that still protects their client’s rights.
Who should I definitely be talking to?
The child – you should be talking to the child first and foremost. Even though the child is not your client, you are their voice and the person formally entrusted with alerting the court to their needs and wishes. (F.R.J.P. 8.215) The child and his or her caregiver are also your best sources of information about the day to day experiences and needs of the child.
The family case manager is the professional working directly with the family, and the person who can keep you up to date on the case or direct you to others who may have information you need. A strong working relationship between the GAL and the family case manager results in strong advocacy for the child. We recommend that you discuss with the family case manager at the start of the case how you will share information. Will you communicate by email, phone or both? Will you be periodically asking how things are going or will you just call each other when something happens?
You will also need to speak with the parents and their counsel. They have ‘the other side of the story’ that you need to know. It may also be necessary to advocate for services or assistance for the parents, in order to reach the best outcome for the child.
From there, the cast of caretakers in a dependency case is vast and varied. So, you’ll want to look at the facts and decide who else has information you may need. Trust your instincts and feel free to call one of the GAL Program staff.
Dependency cases have a lot of hearings at the beginning. What should I do if I can’t personally attend a hearing?
Because they recognize that pro bono GALs can run in to scheduling conflicts, the dependency Judges do allow telephonic appearance. However, they ask that you contact their Judicial Assistant and make arrangements in advance. You can also ask someone from your firm to attend on your behalf or a GAL program attorney can attend for you, if you provide us information beforehand. If you’re confident the hearing is not one at which advocacy is needed, you may ask the Court to excuse you from the hearing and file a written report instead. (F.S.39.822(4))
I heard that I have to personally attend the Termination of Parental Rights Advisory and the Termination of Parental Rights trial, is that true? Even if the parents plan to consent?
Yes. Not only can the GAL, as a party to the case who is also an attorney, participate in the litigation of the case, but the GAL is required to provide a recommendation to the court as to whether the Termination of Parental Rights is in the best interest of the child. The GAL recommendation is one of the factors that the court must consider when determining manifest best interest, and so the testimony of the GAL is a critical factor in the trial. (F.S. 39.810(11))
A GAL is required to file a report with recommendations regarding the termination of parental rights 72 hours before the disposition hearing (F.S. 39.807(b)1), which is usually conducted immediately following the trial. The parents have the right to cross-examine a witness, so the GAL must be present to testify to the recommendation and take questions from the parents’ counsel. If the GAL is not physically present at the trial, then, the trial will have to be continued and permanency for the child will be delayed. Of course, when the parents consent to the termination, all parties can agree to rely on the GAL’s report in lieu of testimony or to allow the GAL to testify by phone.
The Advisory Hearing is where the trial date is set and the parents are advised of their rights. (F.S. 39.808) GALs are strongly encouraged to personally attend the Advisory, even though it is primarily a scheduling hearing. If the parents have decided to enter a consent to the Termination of Parental Rights petition, the prima facie trial will often be conducted at that time and the GAL’s testimony is required. Being able to immediately precede to the adjudication reduces the child’s wait for permanency. If the parent’s do not consent to the termination, the attorneys will be coordinating the trial date at that hearing. The GAL needs to be present to immediately alert the Court to any scheduling conflicts and avoid the need to re-schedule the trial, which will inevitably delay permanency for the child. Judicial economy and the child’s need for permanency as expeditiously as possible, are both best served by the GAL’s personal attendance at the Advisory.
Do you have a question we haven’t answered yet? Please feel free to contact the staff at the
Guardian ad Litem program, and we will be glad to speak with you. 407-841-8310
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