Rule 4-906. Guardian ad litem program.

Intent:

To establish the responsibilities of the Guardian ad Litem Oversight Committee established in Rule 1-205.

To establish the policy and procedures for the management of the guardian ad litem program.

To establish responsibility for management of the program.

To establish the policy and procedures for the selection of guardians ad litem.

To establish the policy and procedures for payment for guardian ad litem services.

To establish the policy and procedures for complaints regarding guardians ad litem and volunteers.

Applicability:

This rule shall apply to the management of the guardian ad litem program.

This rule does not affect the authority of the Utah State Bar to discipline a guardian ad litem.

Statement of the Rule:

(1) Guardian ad Litem Oversight Committee. The Committee shall:

(1)(A) develop and monitor policies of the Office of Guardian ad Litem to:

(1)(A)(i) ensure the independent and professional representation of a child-client and the childís best interest; and

(1)(A)(ii) ensure compliance with federal and state statutes, rules and case law;

(1)(B) recommend rules of administration and procedure to the Judicial Council and Supreme Court;

(1)(C) select the Director of the Office of Guardian ad Litem in consultation with the State Court Administrator;

(1)(D) develop a performance plan for the Director;

(1)(E) monitor the Officeís caseload and recommend to the Judicial Council adequate staffing of guardians ad litem and staff;

(1)(F) develop standards and procedures for hearing and deciding complaints and appeals of complaints; and

(1)(G) hear and decide complaints and appeals of complaints as provided in this rule.

(2) Qualifications of the director. The Director shall have the qualifications provided by the Utah Code.

(3) Responsibilities of the director. In addition to responsibilities under the Utah Code, the Director shall have the following responsibilities.

(3)(A) Manage the Office of Guardian ad Litem to ensure that minors who have been appointed a guardian ad litem by the court receive qualified guardian ad litem services.

(3)(B) Develop the budget appropriation request to the legislature for the guardian ad litem program.

(3)(C) Coordinate the appointments of guardians ad litem among different levels of courts.

(3)(D) Monitor the services of the guardians ad litem, staff and volunteers by regularly consulting with users and observers of guardian ad litem services, including judges, court executives and clerks, and by requiring the submission of appropriate written reports from the guardians ad litem.

(3)(E) Determine whether the guardian ad litem caseload in Judicial Districts 1, 5, 6, 7, and 8 is best managed by full or part time employment or by contract.

(3)(F) Select guardians ad litem and staff for employment as provided in this rule. Select volunteers. Coordinate appointment of conflict counsel.

(3)(G) Supervise, evaluate, and discipline guardians ad litem and staff employed by the courts and volunteers. Supervise and evaluate the quality of service provided by guardians ad litem under contract with the court.

(3)(H) Monitor and report to the Committee guardian ad litem, staff and volunteer compliance with federal and state statutes, rules and case law.

(3)(I) Prepare and submit to the Committee in August an annual report regarding the development, policy, and management of the guardian ad litem program and the training and evaluation of guardians ad litem, staff and volunteers. The Committee may amend the report prior to release to the Legislative Interim Human Services Committee.

(4) Qualification and responsibilities of guardian ad litem. A guardian ad litem shall be admitted to the practice of law in Utah and shall demonstrate experience and interest in the applicable law and procedures. The guardian ad litem shall have the responsibilities established by the Utah Code.

(5) Selection of guardian ad litem for employment.

(5)(A) A guardian ad litem employed by the Administrative Office of the Courts is an at-will employee subject to dismissal by the Director with or without cause.

(5)(B) A guardian ad litem employed by the Administrative Office of the Courts shall be selected by the Director. Prior to the Director making a selection, a panel shall interview applicants and make hiring recommendations to the Director. The interview panel shall consist of the Director (or Directorís designee) and two or more of the following persons:

(5)(B)(i) the managing attorney of the local guardian ad litem office;

(5)(B)(ii) the trial court executive of the district court or juvenile court;

(5)(B)(iii) a member of the Committee;

(5)(B)(iv) a member of the Utah State Bar Association selected by the Director; or

(5)(B)(v) a member selected by the Director.

(6) Conflicts of interest and disqualification of guardian ad litem.

(6)(A) In cases where a guardian ad litem has a conflict of interest, the guardian ad litem shall declare the conflict and request that the court appoint a conflict guardian ad litem in the matter. Any party who perceives a conflict of interest may file a motion with the court setting forth the nature of the conflict and a request that the guardian ad litem be disqualified from further service in that case. Upon a finding that a conflict of interest exists, the court shall relieve the guardian ad litem from further duties in that case and appoint a conflict guardian ad litem.

(6)(B) The Administrative Office of the Courts may contract with attorneys to provide conflict guardian ad litem services.

(6)(C) If the conflict guardian ad litem is arranged on a case-by-case basis, the Court shall use the order form approved by the Council. The Order shall include a list of the duties of a guardian ad litem. The court shall distribute the Order as follows: original to the case file and one copy each to: the appointed conflict guardian ad litem, the guardian ad litem, all parties of record, the parents, guardians or custodians of the child(ren), the court executive and the Director.

(6)(D) A conflict guardian ad litemís compensation shall not exceed $50 per hour or $1000 per case in any twelve month period, whichever is less. Under extraordinary circumstances, the Director may extend the payment limit upon request from the conflict guardian ad litem. The request shall include justification showing that the case required work of much greater complexity than, or time far in excess of, that required in most guardian ad litem assignments. Incidental expenses incurred in the case shall be included within the limit. If a case is appealed, the limit shall be extended by an additional $400.

(7) Staff and Volunteers.

(7)(A) The Director shall develop a strong volunteer component to the guardian ad litem program and provide support for volunteer solicitation, screening and training. Staff and volunteers shall have the responsibilities established by the Utah Code.

(7)(B) Training for staff and volunteers shall be conducted under the supervision of the attorney guardian ad litem with administrative support provided by the Director. Staff and volunteers shall receive training in the areas of child abuse, child psychology, juvenile and district court procedures and local child welfare agency procedures. Staff and volunteers shall be trained in the guidelines established by the National Court Appointed Special Advocate Association.

(8) Private guardians ad litem.

(8)(A) The Director shall maintain a list of private attorney guardians ad litem qualified for appointment.

(8)(B) To be included on the list of eligible private attorney guardians ad litem, an applicant shall apply for eligible private attorney guardian status to the Utah Office of Guardian ad Litem and:

(8)(B)(i) show membership in good standing in the Utah State Bar;

(8)(B)(ii) provide a BCI criminal history report;

(8)(B)(iii) provide a DCFS Child Abuse Data Base report (and like information from any state in which the applicant has resided as an adult);

(8)(B)(iv) provide a certificate of completion for any initial or additional necessary training requirements established by the Director;

(8)(B)(v) agree to perform in a competent, professional, proficient, ethical, and appropriate manner and to meet any minimum qualifications as determined by the Director; and

(8)(B)(vi) agree to be evaluated at the discretion of the Director for competent, professional, proficient, ethical, appropriate conduct, and/or performance, and minimum qualifications.

(8)(C) Upon the appointment by the court of a private guardian ad litem, the court shall:

(8)(C)(i) use the following language in its order: "The Court appoints a private attorney guardian ad litem to be assigned by the Office of Guardian ad Litem, to represent the best interests of the minor child(ren) in this matter.";

(8)(C)(ii) designate in the order whether the private attorney guardian ad litem shall:

(8)(C)(ii)(a) be paid the set fee, as established by paragraph (8)(F), and an initial retainer;

(8)(C)(ii)(b) not be paid and serve pro bono; or

(8)(C)(ii)(c) be paid at a rate less than the set fee in paragraph (8)(F); and

(8)(C)(iii) send the order to the Director c/o the Private Attorney Guardian ad Litem Program.

(8)(D) Upon receipt of the courtís order appointing a private guardian ad litem, the Director shall contact and assign the case to an eligible attorney, if available.

(8)(E) Upon accepting the courtís appointment, the assigned attorney shall file a notice of appearance with the court within five business days of acceptance, and shall thereafter represent the best interests of the minor(s) until released by the court.

(8)(F) The hourly fee to be paid by the parties and to be ordered and apportioned by the court against the parties shall be $150.00 per hour or at a higher rate as determined reasonable by the court. The retainer amount shall be $1000 or a different amount determined reasonable by the court. The retainer amount shall be apportioned by the court among the parties and paid by the parties.

(9) Complaints and appeals.

(9)(A)(i) Any person may file with the chair of the Committee a complaint regarding the Director, or regarding an administrative policy or procedure, not including complaints regarding a particular guardian ad litem, private guardian ad litem, or volunteer. If deemed necessary, the Committee may enter a recommendation to the Judicial Council, which may include discipline of the Director.

(9)(A)(ii) If a complaint regarding the Director or an administrative policy or procedure is received in the Directorís office, the Director shall forward the complaint to the chair of the Committee within a reasonable time, but not more than 14 days after receipt.

(9)(B) Any person may file with the Director a complaint regarding a guardian ad litem employed by the Office of Guardian ad Litem, private attorney guardian ad litem, or volunteer, as defined by UCA 78A-6-902(4)(a). The decision of the Director regarding the complaint is final and not subject to appeal.

(9)(C) If a guardian ad litem and a volunteer disagree on the major decisions involved in representation of the client, either may notify the Director that the dispute cannot be resolved. The decision of the Director regarding the dispute is final and not subject to appeal.

(9)(D) The failure of the Director to satisfactorily resolve a complaint against a guardian ad litem, private attorney guardian ad litem or volunteer is not grounds for a complaint against the Director.

(9)(E) The Director may remove with or without a complaint a private attorney guardian ad litem from the list of eligible private guardians ad litem for failure to perform or conduct themselves in a competent, professional, proficient, ethical and/or appropriate manner or for failure to meet minimum qualifications. Within a reasonable time after the removal, and in the event the private attorney guardian ad litem has not yet been released by the court in a pending case, the Director shall provide written notice to such court of the Directorís action, and the court may, in its discretion, determine whether the private attorney guardian ad litem should be released from the case.

(9)(F)(i) A complaint shall be in writing, stating the name and contact information of the complainant, the name of the child or children involved, the nature of the complaint and the facts upon which the complaint is based.

(9)(F)(ii) In resolving a complaint, the Director or the Committee shall conduct such investigation as the Director or the Committee determines to be reasonable. The Director or the Committee may meet separately or together with the complainant and the person against whom the complaint is filed.

(9)(F)(iii) The decision of the Director may include discipline of the person against whom the complaint is filed. If the complaint is against a private guardian ad litem, the decision may include removal of the private guardian ad litem from the list of private guardians ad litem and the conditions for reinstatement.

(9)(G) This subsection does not apply to conflict guardians ad litem.