Child welfare proceedings in Nebraska are titled “In the Interest of X,” where X is the name of the child. Court jurisdiction is taken not by virtue of a charge against the parent, per se, but because there is a child whose needs are not being met. The parties all gather in the courtroom to argue about — and the judge makes decisions based upon — what the “best interests” of the child are. Every order is framed in terms of the child’s permanency plan.
Given that the child is the heart of the case, it may come as a surprise to learn that much of the time, the child herself never appears in court. Decisions that may have lifelong consequences for her well-being are made in her absence. To make a determination of best interests, instead, the judge often relies on the evidence and recommendations brought by the lawyers and caseworkers. This is where the Guardian ad Litem becomes crucial.
In Nebraska, the Guardian ad Litem (GAL) plays a dual role: to be the legal counsel for the child, and also to guard and advocate for what the attorney considers to be in the child’s best interests. It is a demanding task. (Any parent will understand why these duties may often be in tension.) Long-standing guidelines laid out by the Nebraska Supreme Court for GALs emphasize the importance of frequent visitation, open lines of communication between attorney and child client, diligent investigation and honest reporting to the court. Many GALs in our state work tirelessly on behalf of their clients, making evening home visits and answering midnight phone calls, attending myriad team meetings and making tough decisions to balance the child’s expressed interests with an independent consideration of best interests. However, we also know that some have fallen down on this most important job, leaving already vulnerable children truly voiceless in a court process that will determine their entire future.
This year, Voices for Children testified in support of LB 15, a bill that would have enacted an exhaustive list of powers and duties for GALs into state statute. Through the legislative process, Senator Krist, the bill’s sponsor, worked with the Nebraska Supreme Court and came to a compromise; by its final version, LB 15 basically required the Court to enact standards (rather than guidelines, as before) to which GALs may be held accountable.
The Court now has a draft proposal of this set of standards , found here. It is very similar to the language of the original LB 15. The proposal is open for public comment until June 15, and we strongly encourage interested readers to examine the standards and take the opportunity to give input before the window closes. For our part, we believe this is a good set of standards and will give both lawyers and judges a firm expectation for what constitutes acceptable GAL representation. We are especially enthusiastic about the following provisions:
– VISITATION: In addition to the statutorily required intervals for consulting with the juvenile, when possible, the guardian ad litem should consult with the juvenile when: (i) The juvenile requests that the guardian ad litem meet with him or her; (ii) The guardian ad litem has received notification of any emergency, or other significant event or change in circumstances affecting the juvenile, including a change in the juvenile’s placement; and (iii) Prior to any hearing at which substantive issues affecting the juvenile’s legal or best interests are anticipated to be addressed by the court. (iv) The guardian ad litem should make every effort to see the juvenile in his or her placement at least once, with respect to each such placement.
-COURT ATTENDANCE: The guardian ad litem should advocate for the juvenile to be present at all court hearings as appropriate and take steps where necessary to ensure such attendance on the part of the juvenile.
In our own comment, we intend to highlight our support for these provisions. We will also suggest, as we did in testimony for LB 15, that language be included requiring GAL court reports contain a section on the child’s expressed interests. The current proposal does not contain this language within the standards themselves, though there is a small section for expressed interests on the report form template in Appendix D. We believe that – regardless of which format the reporting form takes — a GAL should inform the court of the child’s expressed preferences at every hearing.
Children who are the subject of child welfare proceedings have already been exposed to the trauma of abuse or neglect, possibly removed from the only home they have known, and are experiencing the uncertainty of an opaque court process that will determine what their family will look like and what their future will hold. They need a strong advocate, who can be both counsel and guide. We hope that implementing court standards for GALs will result in better representation for all children in the system, an will mean more children’s voices are heard in their own cases.