SUPREME JUDICIAL COURT NOTICE OF OPPORTUNITY FOR COMMENT aboutMaine Rules for Guardians Ad Litem
November 28, 2013 § Leave a comment
COME ONE COME ALL THIS BY FAR HAS A WORST APPEARANCE THEN ILLINOIS COOK I MEAN CROOK COUNTY .
COMENT AND ……
STATE OF MAINE
- SUPREME JUDICIAL COURT NOTICE OF OPPORTUNITY FOR COMMENT
Proposed Amendments to Maine Rules for Guardians Ad Litem
Comments due on or before Monday, December 2, 2013 at 4:00 p.m.
The Maine Supreme Judicial Court invites comments on proposed amendments to the Maine Rules for Guardians ad Litem. The proposed amendments are available on the Court’s website at http://www.courts.state.me.us/ rules_adminorders/rules/proposed/gal/proposed_amends_mr_gals_2013-11-13.pdf.
Any comments should be filed with the Clerk of the Supreme Judicial Court by Monday, December 2, 2013, at 4:00 p.m. Comments in writing should be mailed to the address below. Comments sent via email may be in the text of an email or in an attachment to an email, addressed to email@example.com. If the comments are in an attachment, the attachment must be a document in portable document format (.pdf). The Clerk’s Office will acknowledge receipt of the e-mail via a reply e-mail.
All comments must contain (1) the name, mailing address, and telephone number of the individual submitting the comments; and (2) the name, mailing address, and primary telephone number of the organization (if any) on whose behalf the comments are submitted. An individual need not be an attorney to submit comments on behalf of an organization.
Dated: November 13, 2013
Maine Supreme Judicial Court 205 Newbury Street Room 139 Portland, Maine 04112-0368 (207) 822-4146
LETS PROTECT THE APPEARANCE OF THE ABUSERS
STATE OF MAINE
SUPREME JUDICIAL COURT PROPOSED AMENDMENTS TO
THE MAINE RULES FOR GUARDIANS AD LITEM
1. The Maine Rules for Guardians Ad Litem, which were last amended in March 2001, are repealed upon approval of this amendment.
2. The following Maine Rules for Guardians Ad Litem are adopted to read as follows:
RULE 1. AUTHORITY, SCOPE, GOALS, AND DEFINITIONS
(a) Authority and Scope. These Rules are adopted pursuant to 4 M.R.S. §§ 1551 to 1557, 18-A M.R.S. § 1-112, 19-A M.R.S. § 1507, and 22 M.R.S. § 4005, to address practice and performance of guardians ad litem in the District Court, the Superior Court, and the Probate Court. They govern the qualifications for guardians ad litem, standards of conduct for guardians ad litem, appointment of guardians ad litem, and placement of guardians ad litem on, and removal of guardians ad litem from, the guardian ad litem Roster.
(b) Goals. These Rules are designed to govern and define the services provided by guardians ad litem to the court and to promote the best interests of the children whose interests they are appointed to represent. These Rules shall be construed to secure the just, speedy and inexpensive determination of every action. When appointed pursuant to these Rules, a guardian ad litem is a quasi-judicial officer of the court, primarily subject to and governed by the court in the individual proceeding and by the guardian ad litem oversight process more generally. A guardian ad litem must tailor his or her work to the particular needs and circumstances of each case, as identified in the court order appointing the guardian ad litem, but, in general, a guardian ad litem shall
(1) represent consistently the best interests of the child and provide information to the court that assists the court in determining the best interests of the child;
(2) understand and uphold the law and court orders related to the guardian ad litem’s appointment;
(3) maintain the highest standards of professionalism, cultural sensitivity, and ethics;
(4) recognize that timely resolution of each matter serves the best interests of the child and the child’s need for stability;
(5) within the scope of authority defined by statute or court order, plan, carry out, document, and complete thorough, appropriate, and fair investigations in a timely fashion;
(6) communicate in a developmentally appropriate way with the child;
(7) make well-reasoned and factually based recommendations regarding the best interests of the child as directed by the order of appointment;
(8) pursuant to the order of appointment, include parties in the investigation, use effective communication techniques, recognize limitations that may be imposed by the financial resources of the parties as applicable, and be aware of the cultural and socioeconomic status of the parties; and
(9) Complete assignments and written reports in a timely manner and communicate effectively with the court in motions, reports, recommendations and testimony.
(c) Definitions. As used in these Rules, the following terms have the following definitions:
(1) CASA or CASA Program. “CASA” means a court appointed special advocate, and “CASA Program” means the Court Appointed Special Advocate Program established in Title 4, Chapter 31.
(2) Chief Judge. “Chief Judge” means the Chief Judge of the District Court or the Chief Judge’s designee.
(3) Judge or Court. “Judge” or “Court” means a Justice of the Superior Court, a Judge of the District Court, a Judge of the Probate Court, or a Family Law Magistrate.
(4) Roster. “Roster” means the roster of guardians ad litem maintained by the Chief Judge that separately identifies CASAs and individuals approved to serve
As guardians ad litem in Title 18-A proceedings, Title 19-A proceedings, and/or Title 22 proceedings.
RULE 2. GUARDIANS AD LITEM (a) Appointment.
(1) Title 18-A and 19-A Proceedings. In Title 18-A and Title 19-A proceedings a judge may appoint, without any findings, any person listed on the Roster. In addition, when a suitable guardian ad litem included on the roster is not available for appointment, a court may, for good cause shown and after consultation with the parties, appoint an attorney admitted to practice in this State who, after consideration by the court of all of the circumstances of the particular case, in the opinion of the appointing court has the necessary skills and experience to serve as a guardian ad litem. For the purposes of this paragraph, good cause may include the appointment of a guardian ad litem on a pro bono basis.
(2) Child Protection Proceedings. Guardians ad litem appointed in child protection proceedings pursuant to 22 M.R.S. § 4005 shall be either a CASA or an attorney listed on the Roster. If neither a CASA nor a rostered attorney is available, the court may appoint another attorney.
(b) Application, Selection, and Placement of Guardians ad Litem on Roster.
(A) Form. Roster applications shall be submitted on the official
form that can be obtained from the Family Division of the Maine District Court. The Chief Judge may accept an application filed on a substitute form if the Chief Judge determines that substantially all of the information required by the official form has been furnished. The Chief Judge may reject an application that is incomplete or does not meet applicable criteria, or the Chief Judge may require an applicant to provide additional information or explanation.
(B) Application Periods. The Chief Judge will accept applications and will review them periodically.
(2) Selection, Qualifications. The Chief Judge shall screen applications utilizing the criteria set forth in this section.
(3) Criteria for Initial Listing on the Roster. To become listed on the Roster an applicant must demonstrate
(i) A current valid license to practice law in the State of Maine;
(ii) A current valid license to practice as an LCSW, LPC, LCPC, LMSW, LMFT, LPaC, psychologist or psychiatrist in the State of Maine; or
(iii) A Certification of Qualification by the Director of the CASA program, provided that a CASA Certification qualified individual may be appointed a guardian ad litem only pursuant to 22 M.R.S. § 4005.
(B) Core Training. Attendance at a guardian ad litem training with a curriculum of at least 18 hours for Title 18-A and/or 19-A rostering and 23 hours for Title 22 rostering that has been approved by the Chief Judge satisfies this requirement. The curriculum must include specified learning outcomes and activities designed to meet these outcomes, and must cover Titles 18-A, 19-A, and 22; dynamics of domestic abuse and its effect on children; dynamics of separation and divorce and its effect on children; child development; timing and impact of court related events from a child’s perspective; the effects of abuse, neglect and trauma on children; substance abuse; mental health; family finance and the impact of separation and divorce; legal issues and processes; professionalism as a guardian ad litem; the duties and obligations of the guardian ad litem as an agent of the court; and interviewing techniques.
For a guardian ad litem acting under the auspices of the CASA program, successful completion of CASA training satisfies this requirement. CASA guardians ad litem who accept appointment in non-CASA cases must complete the core training requirements.
(C) Good Character. The applicant must demonstrate to the Chief Judge that he or she is presently of good character and fitness to serve as a guardian ad litem.
(4) Placement on Roster. The Chief Judge shall notify applicants of the results of the application screening process. Applicants who pass application screening are conditionally accepted, and shall complete a release authorizing the Administrative Office of the Courts to conduct a background check consisting of: (A) a criminal history information check, (B) a child protective services information check, and (C) a certificate of good standing from the licensing authority for the Applicant’s profession, which must include disclosure of any disciplinary action taken regarding the applicant in the 10 years preceding the date of the application.
Applicants whose background check results are satisfactory to the Chief Judge will be finally accepted and placed on the roster. Applicants whose background check results are not satisfactory to the Chief Judge shall not be finally accepted and placed on the roster.
Applicants whose initial checks indicate a material problem may be disqualified or asked for additional information or releases.
The requirements for initial rostering must be maintained in order for a guardian ad litem to remain in good standing and included on the roster.
The decision of the Chief Judge is final and not subject to appeal.
(5) Continuing Education Requirements. Unless these requirements are waived by the Chief Judge, a guardian ad litem shall attend and complete any continuing professional education events or seminars designated as mandatory by the Chief Judge. In addition, in each 12-month period, a guardian ad litem must annually participate in a total of at least 6 hours of continuing professional education programs applicable to one or more of the issues identified as core training issues in Rule 2(b)(3)(B). At least one credit hour shall be primarily concerned with professionalism education. Qualifying professionalism education topics include professional responsibility as a guardian ad litem; legal ethics related to guardian ad litem work; conflicts of interest; diversity awareness in the legal profession; confidentiality of guardian ad litem records in Title 18-A, 19-A, and/or 22 cases; communication with parents involved in Title 18-A, 19-A, and/or 22 cases and their children; and complaint avoidance topics such as file management and billing practices.
Completion of the specified training hours shall be demonstrated by filing a statement, on a form approved by the Chief Judge, by August 31 of each year. A
guardian ad litem who does not file the statement of completion of the requisite number of training hours by August 31 of each year shall be subject to sanctions, which could include permanent removal from the roster.
(6) Acceptance of Court Referrals. A guardian ad litem should anticipate being asked to accept at least one Title 19-A pro bono or reduced fee referral from the Judicial Branch per calendar year, other than Title 22 cases, and should do so to the extent consistent with the guardian ad litem’s other professional, personal, and other public interest service.
(7) Guardian ad Litem Resignation or Leave of Absence. A guardian ad litem may resign from the Roster at any time. A guardian ad litem may request a leave of absence from the Roster from the Chief Judge, who may accept the request, reject it, or condition acceptance on such terms as the Chief Judge believes are in the best interests of the Judicial Branch.
RULE 3. GUARDIAN OVERSIGHT
RULE 4. IMMUNITY
Pursuant to 18-A M.R.S. § 1-112(f), 19-A M.R.S. § 1507(6), 22 M.R.S. § 4005(1)(G), and these Rules, guardians ad litem are entitled to quasi-judicial immunity from liability for actions undertaken pursuant to their appointments and these Rules.
RULE 5. COURT APPOINTMENT AND DUTIES
(a) Appointment to a Case. An individual shall act in a case as a guardian
ad litem only as authorized by
(1) a limited purpose appointment order issued pursuant to Rule 5(b)(5), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-A M.R.S. § 1-112;
(2) a standard appointment order issued pursuant to Rule 5(b)(6), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-A M.R.S. § 1-112;
* This Rule is the focus of work by the Task Force chaired by Justice Silver.
(3) an expanded appointment order issued pursuant to Rule 5(b)(7), 4 M.R.S. § 1555, and either 19-A M.R.S. § 1507 or 18-A M.R.S. § 1-112; or
(4) an appointment order issued pursuant to Rule 5(c), 4 M.R.S. § 1556, and 22 M.R.S. § 4005.
(b) Title 18-A and 19-A Appointments.
(1) Consideration of Appointment. In proceedings to determine parental rights and responsibilities and guardianship of a minor pursuant to Title 18-A and in contested proceedings pursuant to Title 19-A, section 904, 1653, or 1803 in which a minor child is involved, the court may appoint a guardian ad litem for the child when the court has reason for special concern as to the welfare of a minor child. A guardian ad litem may be appointed by agreement of the parties, or on motion by one of the parties, or by the court, acting on its own motion.
(2) Timing of Motion for Appointment. In a Title 19-A proceeding, any motion or request to the court for appointment of a guardian ad litem shall be filed no later than the conference with the court following the first scheduled mediation session or 60 days after the first conference with the court, if mediation is waived. A motion or request for appointment of a guardian ad litem may be considered at a later time only if the court finds that
- (A) there is good cause for the late motion;
- (B) the reasons for the late motion could not have been anticipated
at a point when a timely motion could have been filed; and
(C) the appointment will not unreasonably delay resolution of the matter or harm the best interest of the child in achieving clarity in parental rights and responsibilities for the child.
(3) Factors to Consider. In determining whether an appointment must be made, the court shall consider
- (A) The wishes of the parties;
- (B) The age of the child;
(C) The nature of the proceeding, including the contentiousness of the hearing;
- (D) The financial resources of the parties;
- (E) The extent to which a guardian ad litem may assist in providing
information concerning the best interest of the child;
(F) Whether the family has experienced a history of domestic abuse;
- (G) Alleged abuse of the child by one of the parties; and
- (H) Other factors the court determines relevant.
(4) Contents of Appointment Order. The appointment shall be by court order, which shall be a limited purpose appointment order, a standard appointment order, or an expanded appointment order. The appointment order, which must be written on the court-approved form, shall
(A) Specify the guardian ad litem’s length of appointment; duties, including the filing of a written report pursuant to 4 M.R.S. § 1555(6) and either 19-A M.R.S. § 1507(5) or 18-A M.R.S. § 1-112(e); and fee arrangements, including hourly rates, timing of payments to be made by the parties, and the maximum amount of fees that may be charged for the case without further order of the court. The guardian ad litem may not perform and shall not be expected to perform any duties beyond those specified in the appointment order, unless subsequently ordered to do so by the court.
(B) If, in order to perform any specified duties, the guardian ad litem needs information concerning the child or parents, the court may order the parents to sign an authorization form allowing the release of the necessary information. The court order may specify that the guardian ad litem must be allowed access to the child by caretakers of the child, whether the caretakers are individuals, authorized agencies, or childcare providers.
(C) In Title 18-A proceedings, the court shall specify who is responsible for payment of the guardian ad litem’s fees. In Title 19-A proceedings, the order shall specify that payment for the services of the guardian ad litem is the responsibility of the parties pursuant to 19-A M.R.S.
§ 1507(7), with the terms of payment specified in the order. In determining the responsibility for payment, the court shall consider
(i) The income and earnings of the parties;
(ii) The marital and nonmarital assets of the parties;
(iii) The division of property made or anticipated as part of the final divorce or separation;
(iv) Which party requested appointment of a guardian ad litem; and
(v) Other factors deemed relevant by the court, which shall be stated with specificity in the appointment order.
When appointment of the guardian ad litem or the fee arrangements for payment of the guardian ad litem are not agreed to by the parties, the court shall state in the appointment order its findings, based on the criteria stated above, supporting the appointment of the guardian ad litem and the fee payment order.
Collection of payment of fees, if a collection action is necessary, shall proceed pursuant to Title 14 and shall not be pursued in the action in which the guardian ad litem is appointed.
(5) Limited Purpose Appointment Order. The court may appoint a guardian ad litem for a specified, limited purpose or purposes. The order must specify the duties that the guardian ad litem shall perform, the duration of the appointment, the maximum number of hours that may be spent on the case by the guardian ad litem, the hourly fee rate, and the maximum fee that may be charged by the guardian ad litem. The order shall further specify when the fee shall be paid and by whom. If the payments ordered to be made before the guardian ad litem commences the investigation, if any, are not paid as ordered, the guardian ad litem shall notify the court, and the court may vacate the appointment order or take such other action it deems appropriate under the circumstances.
(6) Standard Appointment Order. The standard appointment order shall list the duties of the guardian ad litem to be performed pursuant to the order.
(A) Those duties, in each standard appointment order, shall be:
(i) Observing the child or children in the home or homes where the child or children regularly reside, and for each child over the age of 3, conducting a face-to-face interview with the child;
(ii) Interviewing each parent and each other adult who resides in the home or homes where the child or children regularly reside; and
(iii) Completing and filing a written report of investigations, findings, and recommendations as ordered by the court when the case is to proceed to a contested hearing, with copies of the report to each party and the court, within the time specified in the appointment order.
(B) For the performance of these duties, the appointment order shall specify a maximum fee and direct that a specified sum be paid within a set time before the guardian ad litem commences the investigation, with the remainder to be paid within 14 days after the filing of the written report. If the payments ordered to be made before the guardian ad litem commences the investigation are not paid as ordered, the guardian ad litem shall notify the court, and the court may vacate the appointment order or take such other action it deems appropriate under the circumstances.
(7) Expanded Appointment Order. The original appointment order or an amended appointment order may specify any additional duties of the guardian ad litem that shall be individually approved by the court.
(A) The additional duties may include
(i) Interviewing teachers and other people who have knowledge of the child or family;
(ii) Reviewing mental health, medical and school records of the child;
(iii) Reviewing mental health and medical records of the parents;
(iv) Having qualified people perform medical and mental evaluations of the child, within a time and at a cost to be stated in the order;
(v) Having qualified people perform medical and mental evaluations of the parents, within a time and at a cost to be stated in the order;
(vi) Procuring counseling for the child;
(vii) Retaining an attorney to represent the guardian ad litem in the pending proceeding, with approval of the court;
(viii) Subpoenaing witnesses and documents, and examining and cross-examining witnesses;
(ix) Serving as a contact person between the parents and the child; or
(x) Other duties that the court determines necessary, including, but not limited to, filing pleadings and testifying in court.
(B) If any additional duties are ordered to be performed pursuant to the original appointment order or an amendment of that order, the timing, report preparation deadlines, fee arrangements, and maximum fee limits set in the original appointment order shall be amended to recognize the additional duties set to be performed pursuant to the appointment order.
(8) Best Interest of the child. In performance of duties in Title 18-A and Title 19-A proceedings, the guardian ad litem shall use the standard of the best interest of the child as stated in 19-A M.R.S. §1653(3).
(9) Wishes of the child. The guardian ad litem shall make the wishes of the child known to the court if the child has expressed them, regardless of the recommendation of the guardian ad litem.
(10) Written report. A guardian ad litem shall provide a copy of any required final written report to the parties and the court at least 14 days in advance of the final hearing. The report is admissible as evidence and subject to cross-examination and rebuttal, whether or not objected to by a party. Any objections to the report shall be filed at least 7 days in advance of the final hearing.
(11) Court’s agent. A person serving as a guardian ad litem pursuant to 4 M.R.S. § 1555 and either 18-A M.R.S. § 1-112 or 19-A M.R.S. § 1507 acts as the court’s agent and is entitled to quasi-judicial immunity for acts performed within the scope of the guardian ad litem’s duties.
(c) Title 22 Appointment Order. Guardian ad litem appointment orders entered pursuant to 4 M.R.S. § 1556 and 22 M.R.S. § 4005 must be written on a court-approved form and shall specify the terms and conditions of the guardian ad litem’s appointment as stated in Title 22 and in these Rules. The guardian ad litem has no authority to perform and shall not be expected to perform any duties beyond those specified in the appointment order, unless subsequently ordered to do so by the court.
(1) Meet and Interview Child. The guardian ad litem shall be provided access to the child by any agency or person. Irrespective of the child’s age, the guardian ad litem should visit with the child as soon as possible after appointment, consistent with statutory requirements or the order of appointment, or both. Unless otherwise specified by the court, the initial meeting must take place within 7 days after appointment. The guardian ad litem should meet with the child prior to court hearings and when apprised of emergencies or significant events that are likely to have an impact on the child. Unless otherwise specified by the court, the guardian ad litem must meet with the child at least quarterly.
(2) Investigation. In pursuit of the best interests of the child, the guardian ad litem should be given access to all reports and records relevant to the case and investigate to ascertain the facts. The investigation must include, when possible
and appropriate, (A) (B) (C) (D)
and other persons who have been involved in caring for or treating the child.
(3) Court filings. The guardian ad litem should file such reports, motions, responses, or objections as necessary and appropriate to the stage of the case to assist the court in identifying the best interests of the child and provide copies to all parties of record. In the event any new developments or significant changes in the child’s circumstances occur during the pendency of the court process, the guardian
Review of relevant mental health records and materials;
Review of relevant medical records;
Review of relevant school records and other pertinent materials; Interviews with the child with or without other persons present;
Interviews with parents, foster parents, teachers, caseworkers,
ad litem may file appropriate pleadings. Relief requested may include, but is not limited to:
- (A) A mental or physical examination of a party or the child;
- (B) A parenting, custody or visitation evaluation;
- (C) An increase, decrease, or termination of contact, or the
imposition of conditions on contact;
- (D) Restraining or enjoining a change of placement;
- (E) Contempt for noncompliance with a court order;
- (F) Termination of the parent-child relationship;
- (G) Child support;
- (H) A protective order concerning the child’s privileged
communications or tangible or intangible property;
- (I) A request for services for child or family; and
- (J) Dismissal of petitions or motions.
(4) Participation in Hearing. The guardian ad litem shall appear at all child protection proceedings to represent the child’s best interests, unless previously excused by order of the court, and other proceedings as ordered by the court. The guardian ad litem may present evidence and ensure that, where appropriate, witnesses are called and examined, including, but not limited to, foster parents and psychiatric, psychological, medical, or other expert witnesses. If the guardian ad litem testifies, the guardian ad litem shall be duly sworn as a witness and be subject to cross-examination.
(5) Protection of Child as Witness. The guardian ad litem shall protect the interests of the child who is a witness in any judicial proceeding relating to the case in which the guardian ad litem has been appointed. The guardian ad litem may advocate for special procedures, including, but not limited to, special procedures to protect the child witness from unnecessary psychological harm resulting from the child’s testimony, with or without the consent of other parties.
(6) Recommendations to the Court. The guardian ad litem shall recommend appropriate services, by motion for court order if necessary, to access entitlements, to protect the child’s interests, and to implement a service plan.
For interim or preliminary protection hearings, the guardian ad litem should, except as otherwise required, appear in court and offer recommendations subject to questions by the court and parties or counsel. The guardian ad litem should present written recommendations to the parties and the court reasonably in advance of any interim or final hearing. The report shall be based on the guardian ad litem’s investigation and evaluation and provide reasons in support of these recommendations. Unless otherwise specified by the court, the guardian ad litem must make a subsequent report at least semi-annually. Whether or not the guardian ad litem’s report is objected to, the report may be reviewed by the court and is fully admissible. In addition, whether or not the guardian ad litem’s report is objected to, the guardian ad litem may offer evidence to the court.
(7) Development of Services. The guardian ad litem should advocate for appropriate services, by motion for court order if necessary, to access entitlements, to protect the child’s interests, and to implement a service plan. These services may include, but are not limited to
- (A) Family preservation prevention or reunification services;
- (B) Sibling and family visitation;
- (C) Child support;
- (D) Domestic violence prevention, intervention, and treatment;
- (E) Medical and mental health care, including residential/inpatient
and outpatient psychiatric treatment if necessary and appropriate;
- (F) Drug and alcohol treatment;
- (G) Parenting education;
- (H) Semi-independent and independent living services;
(I) Foster care, including therapeutic foster or group home care if necessary and appropriate;
- (J) Termination of parental rights action;
- (K) Adoption services;
- (L) Education, including special education and related services if
necessary and appropriate;
- (M) Recreational or social services;
- (N) Housing; and
- (O) Supplemental security income (SSI) to help support needed
services, if necessary and appropriate.
(8) Best interests of the child. In performing the duties specified in the appointment order, the guardian ad litem shall use the standard of the best interest of the child.
(9) Additional Powers. A guardian ad litem has a broad potential scope of activity and authority in Title 22 proceedings. However, in most cases completion of all activities and the exercise of all powers are not necessary and, pursuant to 4 M.R.S. § 1556(2)(B), a guardian ad litem may not perform any duties beyond those specified by court order. Accordingly, in addition to the above elements, the guardian ad litem’s investigation may, where ordered by the court, include
(A) Reviewing the court files of siblings and other family members, and other case-related records of involved social service agencies and other service providers;
(B) Contacting lawyers for other parties and other guardians ad litem in the case and in other relevant cases for background information;
(C) Obtaining necessary authorizations for the release of information;
(D) Interviewing individuals involved with the child, including school personnel, child welfare case workers, foster parents, and other
caretakers, neighbors, relatives, coaches, clergy, mental health professionals, physicians, law enforcement officers, and potential witnesses;
(E) Reviewing relevant photographs, video or audio tapes and other evidence;
(F) Attending and participating in, where appropriate, treatment, placement, administrative hearings, other proceedings involving legal issues, and school case conferences concerning the child as needed;
(G) Assessing any physical, sexual, developmental, and/or emotional risks to or abuse of the child by utilizing risk assessment tools; evaluations, assessments, and reports; medical records; observation; and interviews with appropriate persons;
(H) Working effectively with other professionals involved in the assessment or treatment of the child and/or parties to a child’s case, to include:
(i) identifying the need for assessments related to domestic violence, abuse of a child, chemical dependency, mental health, and/or special developmental, educational, or medical needs of a child, and making referrals to appropriate specialists or treatment programs;
(ii) requesting educational testing of, or an individualized education plan for, a child;
(iii) understanding measurement tools, risk assessments, and reports related to domestic violence, abuse of a child, chemical dependence, mental health, and/or the special needs of a child; and
(iv) understanding scientific data related to paternity and/or medical needs of a child; disclosing information to other professionals, when it is in the child’s best interests to do so, in order that they can adequately perform their functions; and reviewing tentative conclusions or recommendations with them in order to test their validity or appropriateness;
(I) Participating in the development and negotiation, including mediation, of any plans or orders that affect the best interests of the child; and
(J) Monitoring implementation of service plans and court orders, through the termination or expiration of the guardian ad litem’s appointment, to determine whether services ordered by the court are being provided in a timely manner.
(10) Appointment of Counsel for Guardian ad litem. A guardian ad litem may petition the court to appoint a lawyer to represent the guardian ad litem when, in the judgment of the guardian ad litem, such appointment is necessary to protect the legitimacy of the guardian ad litem’s role. The guardian ad litem should understand that such an appointment is highly unusual, and that extraordinary cause will be necessary for such an appointment if the guardian ad litem is an attorney.
RULE 6. STANDARDS OF CONDUCT
(a) Faithfully perform duties. The guardian ad litem must maintain independent representation of the best interests of the child and perform the guardian ad litem’s duties faithfully. Upon failure of the guardian ad litem to do so, the appointing court may discharge the guardian ad litem and appoint a successor or, in Title 18-A and 19-A cases, proceed without a guardian ad litem.
(b) Court’s agent. As a quasi-judicial officer, the guardian ad litem shall exercise his or her independent judgment on behalf of the child in all relevant matters, respecting the court’s obligation under Canon 3(B)(8) of the Maine Code of Judicial Conduct to “dispose of all judicial matters promptly, efficiently, and fairly.”
(c) Develop Understanding of Litigation. Commencing upon appointment, the guardian ad litem should, to the extent reasonably possible, considering the resources authorized for the guardian ad litem:
(1) Obtain copies of all relevant pleadings and notices;
(2) In Title 22 cases, unless excused by the court, and in Title 18-A and 19-A cases, when directed by the court, participate in depositions, negotiations, and discovery that are relevant to the child’s best interests, and participate in all case management, pretrial or other conferences, and hearings, unless excused by the court;
(3) Confirm with the Court Clerk that he or she has been appointed. The Clerk shall send copies of all subsequent notices and orders to the guardian ad litem. Parties and their counsel are on notice that the guardian ad litem is entitled to copies of all pleadings and correspondence with the court and is entitled to reasonable notification prior to case conferences, changes of placement, and other changes of circumstances affecting the child and the child’s family;
(4) Not cause case delays and attempt to reduce case delays. If unnecessary delays are encountered, the guardian ad litem should remind the court or its staff of the need to speedily resolve children’s issues;
(5) Include parties in the investigation, employ effective communication techniques, and be sensitive to the culture and socio-economic status of the parties.
(d) Explanation of Court Process. The guardian ad litem shall explain, when appropriate, the court process and the role of the guardian ad litem to the child. The guardian ad litem will assure, when necessary, that the child is informed of the purpose of court proceeding.
(e) Advocate for Clear Court Orders. The guardian ad litem should request orders that are clear, specific, and, where appropriate in Title 22 cases, include a time line for the assessment, services, placement, treatment, and evaluation of the child and the child’s family.
(f) Mandated Reporting. Pursuant to 22 M.R.S. § 4011-A, while acting in their professional capacity as guardians ad litem, guardians ad litem are mandated reporters, and if a guardian ad litem knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected, the guardian ad litem must make an immediate report to the Department of Health and Human Services.
(g) Confidentiality. A guardian ad litem shall observe all statutes, rules and regulations concerning confidentiality. A guardian ad litem shall not disclose information or participate in the disclosure of information relating to a case to any person who is not a party to the case, except as necessary to perform the guardian ad litem’s duties, or as may be specifically provided by law or by these Rules. Communications made to a guardian ad litem, including those made to a guardian ad litem by a child, are not privileged and may or may not be disclosed to the parties, to the court, or to professionals providing services to the child or the family based on the guardian ad litem’s evaluation of the best interests of the child. A guardian ad litem’s notes and work papers are privileged and shall not be disclosed
to any person. A court may review a guardian ad litem’s decision not to disclose information after an in-camera examination of the information in question. If the guardian ad litem is an attorney, she or he acts in his capacity as a guardian ad litem, rather than as an attorney, and information he or she receives is not subject to the attorney-client privilege.
A guardian ad litem may, when it is in the best interests of a child, initiate or participate in ex parte communications with the court about a particular case pursuant to Canon 3(B)(7)(C) of the Maine Code of Judicial Conduct. However, as a matter of due process and fundamental fairness, the guardian ad litem or the court must promptly disclose the nature of the communication to the parties or their counsel, unless such disclosure is likely to present a risk of harm to the child or a party, in which case the court will take such steps as are necessary to alleviate the potential for harm, and when the danger of harm has passed, disclose the nature of the communication to the parties or their counsel.
(h) Conflicts. If a guardian ad litem determines that there is a conflict of interest requiring withdrawal, the guardian ad litem should continue to perform as the guardian ad litem and seek permission from the court to withdraw. The guardian ad litem should request appointment of a successor guardian ad litem without revealing the details of the conflict, unless the guardian ad litem determines that it is in the child’s best interests to disclose the details.
If a guardian ad litem is appointed for siblings, a conflict for one child may also be a conflict that could require that the guardian ad litem seek to withdraw from representing all of the children.
(i) Withdrawal. A guardian ad litem may seek to withdraw by filing a motion with the court that appointed the guardian ad litem. The guardian ad litem must continue representation until the motion is granted, and if the court’s order so provides, until a successor guardian ad litem is appointed. In Title 19-A cases, an order that appoints a guardian ad litem “for the duration of the case” does not obligate the guardian ad litem to serve once a final judgment has been rendered by the trial court. In Title 22 cases, an order that appoints a guardian ad litem “for the duration of the case” obligates the guardian ad litem to serve until final action, including adoption of the child.
Advisory Note – _____ 201_
The LSW license, which requires only a bachelor’s degree, has been removed from the list of licensures that form the predicate of a guardian application. Each of the other licenses requires at least a master’s degree.
3. These amended rules shall take effect on ________ __, 201_.
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