The job of an ad litem whether a guardian or attorney ad litem is not only challenging and rewarding it can have a long lasting effect on the children or party we are appointed to represent.
A guardian ad litem and attorney ad litem are defined in Texas Family Code Section 107.001 and the presumed duel role where an in governmental entity is petitioner is clarified in TFC section 107.0125. A guardian ad litem may be appointed by the court or upon Motion of a party and the court shall appoint a guardian ad litem and attorney ad litem in governmental cases where termination or Conservatorship are sought, Texas Family Code Sec 107.011 and 107.012. I
An attorney ad litem shall be appointed for a parent when an indigent parent responds in opposition to the termination; a parent is served by publication; an alleged father fails to register with the registry under Chapter 160 and whose identity and address are unknown and where an alleged father registers but the citation cannot be served at that or any other location known to petitioner. TFC 107.013.
Once appointed the guardian ad litem has the charge and the duty to be the personal representative of the child and to protect the child’s best interest. The duties and specifics of the duties are clearly stated in Texas Family Code Sec 107.002. The duties are restated in different language as of September 1, 2003. A thorough reading of the new TFC Section 107needs to be done to make sure your duties and responsibilities as guardian ad litem or attorney ad litem are being performed in the proper manner.
The Guardian Ad litem has the duty to interview the child, if over four years old, and others who are likely to have significant information into a child’s history and condition This investigation should be to th extent to determine the best interest of the child including the review of medical, psychological, and school records. [i]TFC 107. 002;
The attorney ad litem role is slightly different although both are charged with the task of encouraging settlement and the use of alternative forms of dispute resolution TFC 107 .002 (5) and TFC 107.003(F).
An ad litem appointed to be both guardian ad litem and attorney ad litem enter into mediation looking after the best interest of the child and protecting those interests. This ad litem not only signs off on the mediated settlement agreement or may decline in signing the agreement. They also have the obligation to help craft the agreement to protect the child’s rights. The guardian ad litem is also entitled to explain the basis for the guardian opposition to an agreed order if the guardian ad litem does not agree with the terms of the proposed order TFC Section 107.002(c) 6
The involvement and ultimate recommendations of a guardian ad litem tragically sometimes had life or death consequences. Because the recommendations have life-altering implications, a judge relies largely on trust in deciding whom to appoint as a guardian. The judge, as the decision-maker, must trust the guardian to contribute to a consensus finding that would be in the child's best interest. Because trial judges have been allowed complete discretion regarding whom to appoint as a guardian ad litem and no mandatory list of qualifications now exists, each trial judge is left to his or her own judgment in deciding whom to appoint. Our local judges appoint guardians who had attended our court's continuing legal education program for guardians on a biannual basis. All judges who must utilize a guardian /attorney ad litem come to know the lawyers practicing in their courts and the skills and motivation to be an ad litem for the children and even the appointed attorney for a parent in some family law matters.
InTexas, civil trial judges and guardians have been instructed that the guardian must "participate in the case to the extent necessary to protect the child," American Gen. Fire & CAS. Co. v. Vandewater, 907 S.W.2d 491, 493 n.2 (Tex. 1995) (emphasis added), and that "the guardian ad litem should be allowed considerable latitude in determining what ... activities are necessary to that effort," Roark v. Mother Frances Hosp., 862 S.W.2d 643, 647 (Tex. App.--Tyler 1993, writ denied). The road map is easier to follow as these duties and obligations are set out in TFC Chapterr107.
A child becomes involved in a court action because of an injury to himself or herself, due to a divorce or S.A.PC.R. Action, a CPS case, or where a termination Action is sought. When negotiations between the parents or parties may be involved, a guardian ad litem may be needed. All areas in which a guardian ad litem is involved in behalf of the child are areas of possible conflict that could benefit from the mediation process.
All of the other parties in the dispute may have their opinions of what is best for the child; however, the guardian ad litem is the personal representative who has the responsibility to express the interests of the child.
The obligation to know your client, the child, is especially true when the ad litem is participating in the Mediation Process. Usually a client has to be present at the mediation because they are the final decision makers to the mediated settlement agreement. This is not the norm when a child is a party, or has an interest in the outcome, therefore, the guardian ad litem, as the personal representative becomes the expression of the interests, perceptions, and feelings of the child. The guardian ad litem should be familiar with the circumstances, even the emotions of the child, for through the ad litem the child is heard in the mediation. Since the child is usually not present at the mediation, the ad litem is in the unique position to relay the child’s viewpoint while protecting their interests.
The ad litem can be a positive force in the mediation by knowing the child’s needs, reviewing pleadings, discovery, medical records or counseling reports, and reviewing discovery, if necessary, so that the ad litem is ready to discuss and express the child’s interests during mediation. The court’s order allows this information to be given to an attorney ad litem or guardian ad litem as found in the new section TFC section 107.006.
The ad litem should participate in the Opening or joint session, state the beliefs or the appropriateness of the negotiations as the mediation progresses and affects the child so that the mediated agreement reflects a child’s best interests. The ad litem should be involved so that the parties understand how their negotiations ultimately will or will not meet the needs of the child.
The ad litem should actively participate in the mediation and listen to the viewpoints so the interests, concerns, and goals of the other parties are known and considered while the ad litem expresses the best interests of the child.
The mediation, from the ad litem’s viewpoint, may focus on how to provide the child the proper and safe access to either the parents or care givers if there is a family or kinship placement, in a manner that is best for the child. The ad litem should remain flexible in the mediation process so that the needs, the age, the relationship of the parents and possibly other parties are all reviewed and considered while the ad litem protects the child’s interests. The ad litem should consider the risks of protracted litigation, and the effects of trial and the presentation of the child before the trier of the facts. These are important factors to consider in mediation.
The review of expert reports, medical records, school records, the effect the current circumstances of the parents and the child just prior to mediation help the ad litem to express the most current needs of the child they are obligated to protect. The child cannot speak for himself or herself; therefore, the ad litem should be prepared to speak for them.
The child can still intelligently relate their needs, desires, and interests even if they are not present in the mediation. An ad litem then could decide whether to have the child, depending on age and maturity, present and involved in the mediation. Again, the ad litem should know the child/ client well enough to determine how the child could participate in the mediation.
An adult child that has a diagnosis of mental illness still has many rights as allowed under the Texas Constitution and under the Mental Health and Safety Code. An ad litem may be involved in a variety of circumstances where marital relations are involved. All of these areas are, certainly, legal circumstances where the ad litem may be participating in a mediation process to protect the child’s interests and allowed for closure of the factors in dispute. The ad litem may have been appointed under T.R.C.P. #173, Family code 107.0013, or Probate Code #683.
Confidentiality and the ad litem report:
A guardian ad litem needs to remember that the mediation process is a confidential process when stating reasons to oppose the agreed settlement in report to the court and when testifying in court. The Attorney ad litem does not file a report with the court nor can they testify even if serving in the dual role of the guardian/attorney ad litem; however, an attorney ad litem is a participant in the mediation and is bound the confidentiality rules. Civil Practice and Remedies Code 154.073[ii]
The confidentiality allowed in mediation is one of the cornerstones of why mediation is so successful inTexas. The ad litem, if a report to the court is being prepared after mediation, should be aware of the confidentiality practiced in the mediation and should be careful in crafting the Court Report when making the report and recommendations to the court whether the Mediation lead to a mediated settlement agreement or to an impasse.
The ad litem’s job is an important one that can be challenging and rewarding. When the ad litem knows the child, reviews the pleadings, discovery, expert reports, medical records, school records and interviews the appropriate witnesses or parents the participation can aid in the parties in arriving at a mediated settlement agreement. The child will be protected and the appointed guardian ad litem duties and responsibility can be well performed and understood by the adults involved.
When the fees are submitted for payment, in the case of a private suit out side of a CPS termination case the party responsible for paying the ad litem; TFC 107.015 might even consider the fees reasonable, fair and necessary.
The ad litem can be very helpful and beneficial to the mediation process by adding a third prospective into the process and by presenting options that meet the child’s needs,
The attorneys for the parties are obligated to pursue their client’s interests which may not always align with the best interest of the child, The ad litem can help the parties focus on the effects an agreements has on a child and can help the mediator “reality check the parents/parties to focus on including the child on an equal or higher plain than just expressing their own needs and positions.
Accept the duty and responsibility of an ad litem help the child or children and fully participate in the mediation process to obtain a settlement result that is in the child’s best interest while still considering the concerns and view points of the parents/ parties involved.