Late on Monday, August 29, 2011, the Supreme Court of Missouri finally released its updated standards for guardians ad litem. In 1996, the court was mandated by the legislature to revise and update Guardian Ad Litem standards and have an implementation plan in place by July of 2011. In 2009, the court issued a press release seeking comments and recommendations, from the public, regarding revisions the standards, and in the 2010/2011 legislative session a bill was introduced in the senate, SB237, which finalized the process. Members of the revision committee included judges, attorneys and CASA volunteer administrators. While many attempts were made by citizens to contribute to the revision process, no members of the public were allowed to participate. Why?

Perhaps a judicial/legal system, that polices itself, didn’t want interference from outside the brotherhood. The first and most glaring revision to the new standards is stated in the first paragraph.

… the court shall only appoint a lawyer licensed by the Supreme Court who has completed the training required by these standards.

The court may designate a court appointed special advocate volunteer to assist in the performance of the guardian ad litem duties for the court as provided by law.

No where in Missouri Statutes 452.423 or 210.160 does it state that only a licensed attorney may represent a child in a proceeding as a guardian ad litem. It does allow for the guardian to be the legal representative, but never requires the representative to be licensed by the courts. Statute 210.830 allows for a child to be represented by a next friend and Statutes 453.025 and 211.462 allow for a legal advocate. Again, nothing about licensing by the courts being a requirement. The previous standards allowed for court appointed special advocates to also act as guardians ad litem when appointed by a judge. The new standards do not appear to reflect the statute guidelines. Laypeople who are navigating the court system, in Missouri, will rightfully be misinformed by this discrepancy if they do not get factual information from their attorneys or do their own research beyond reading the new standards.

How does this affect the Court Appointed Special Advocate (CASA) program? In reading through the statutes, there appears to be no differentiation between situations in which an attorney or a CASA volunteer may be appointed as a guardian ad litem. However, in a conversation with Missouri’s CASA Executive Director, Beth Dessem, she states CASA volunteers, in Missouri, only perform guardian ad litem duties in cases of neglect or abuse and not in family courts, unless abuse or neglect is present in those cases. It begs the question, how can a CASA volunteer perform as a GAL, in cases of divorce or abuse and neglect, if they are not licensed attorneys as stated in the new standard? Again, in the new standards document, the term “lawyer” is used throughout. It would appear that the court/legal system has developed its own criteria, outside the statutes, for assigning guardian ad litem duties. The CASA program is largely funded, in one form or another, by tax-payer dollars, either by state or local municipality funding. In family court cases, however, where guardians ad litem are assigned to various divorce proceedings, attorneys are awarded these cases and are paid by the litigants. It is not uncommon, as cases are often escalated and drawn out for long periods of time, for attorneys acting as GALs to make six figures from a single case. Could the legal network be stacking the deck, in favor of attorneys, to reap the most financial gain from the system?

Standard 5.0 outlines access between the GAL and the child. Throughout, the standard guidelines are given which summarize various opportunities for the GAL and child to communicate and see each other. However, comments for this section clearly suggest that the GAL should promote and maintain a “relationship” with the child. Is it appropriate for government entities to enter the family sphere to create relationships with clients? While it is reasonable to expect that GALs need to have access to clients and information regarding their client’s care and lifestyle, in order to provide the court with recommendations as to their best interests in neglect and abuse cases, is it reasonable to promote “relationships” with children, who may form emotional bonds, with someone who works for the court system? Are family courts overstepping their reach, into the family, by inferring more authority and closer “relationships” with clients, especially since not all cases in which GALs are assigned, involve neglect or abuse?

Has the Family Court turned into BIG BROTHER? Standard 7.0 addresses confidentiality and privilege. It outlines that information received during a case falls under the rules for professional conduct according to the Missouri Courts. The comment for this section, however, have lengthy explanations for various aspects, of which parents should be aware. It allows for GALs to receive information for every aspect of the child and family dynamic; schooling, psychological, medical, substance abuse, etc. Not necessarily unreasonable information to have when investigating neglect or abuse, but in cases of divorce, where GALs can be assigned for custody battles, they are also entitled to this information, even when abuse is not found or alleged. Problems, here, may arise with transparency. The comments state:

Only the court has the authority to rule on any request concerning the handling or disposition of the file and order its release or early destruction to rule on any request concerning the handling or disposition of the file. The guardian should not provide the file to anyone, including the child, without the consent of the court.

Does this also mean parents may not have access to the file without court approval? Will obtaining the file require costly attorney fees to draw up written requests to the court? Would parents have the ability to challenge any information entered into the file they feel is fallacious? Remember, not all cases in which GALs are assigned encompass neglect and abuse. One might even question: Are GALs being over used by the courts? Should parents have access to files generated by the court system? What recourse, to dispute false allegations, do citizens have?

Comments for standard 14.0 state that GAL practice is unique, complex and requires special education, training and experience. Perhaps that is why the Supreme Court decreased the required initial training from 12 hours to 8 hours, and subsequent continuing education from 6 hours to 3 hours annually. Beth Dessem, Missouri’s CASA Director states that CASA volunteers receive 30 hours of training to act as guardians ad litem.

The process of revising the GAL standards has been one of secrecy. After the Supreme Court issued a press release for public input, they shut the process down, from any inclusion of public opinion or oversight. Requests to get copies of rough drafts or attend meetings were denied or met with stonewalling. As the legislature took up the issue of approving the standards in the 2010/2011 legislative session they did so also without input or knowledge of their contents. They heard citizen testimony, in committee, about the abuses of the system and the courts refusal to release the content of standards revisions. Each member of the Missouri House and Senate also received model legislation from the citizenry in which they were asked to consider for inclusion into the new standards. The model legislation included, among other things:

Providing a vehicle to remove GALs who were abusing the system or not acting within guidelines

Create outside supervisory panels/boards to oversee guardian discipline issues

Provide limits for scope of investigations, to items listed on petitions that compel assigning them to the case

Impose time limits on investigations to prevent escalation of cases and prevent children from long term exposure to traumatic processes.

Require qualified expertise and additional training above the 12 hour mandate

Require GALs to pass background checks

Create avenues for families/children to communicate with the judge when GALs are overstepping guidelines or abusing their authority

Require the judges to set expenditure limits on GAL fees, and any other costs incurred in investigations

Remove immunity for GALs

Allow for punitive damages against GALs who wrongly accuse parties of abuse

All of these requests fell on deaf ears. SB237 was approved almost unanimously by the Missouri House and Senate. One lone senator, James Lembke, of District 1 cast a no vote.