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The
popular TV show, The Guardian, peaked my curiosity
about what a real attorney ad litem does. I attended
court with an ad litem, talked with other lawyers
and judges involved in the Arkansas program and did
a little research. In this article I will share with
you what I learned.
There are two separate
but related programs for ad litems. One is more visible
because it involves custody of children in disputed
domestic relations cases, which are handled in open
court. The other involves ad litems for dependent
and neglected children, and also ad litems for indigent
parents in dependency-neglect cases. These are not
so visible because the hearings are in closed courtrooms
and the records are sealed. They are essentially secret,
so as to protect the privacy of the child. These two
types of cases are closely related but have different
characteristics. These will be explored as the article
develops.
On a hot July day I
went to Treeca Dyer's office to go with her to court
where she was scheduled to represent several of her
juvenile clients. On the way to court Dyer told me
that she has been interested in children and their
welfare since she was a teenager. When she was in
high school she spent two weeks of each summer as
a volunteer at a camp for underprivileged children.
She fell in love with the kids. They were so needy
and "camp was such a big deal to them, they just
soaked it up." After that she was a volunteer
leader for Young Life and taught Sunday school. "Kids
are something I have always been interested in."
When the ad litem program was announced she knew that
was something she wanted to do because "I feel
that I can really make a difference to these children."
Ms. Dyer is attorney ad litem for 30 families that
make up 45 to 50 children who are in the juvenile
court system.
When we arrived at the
courthouse, Ms. Dyer took me to Circuit Judge Lance
Hanshaw's office. He has responsibility for the juvenile
docket in Lonoke County. She introduced me and explained
to him that I was writing this article and asked permission
for me to observe the hearings in the courtroom. She
told him that I am a member of the bar and understand
the necessity of confidentiality for these hearings.
Judge Hanshaw graciously welcomed me and gave me permission
to attend the hearings and take notes and pictures.
After we entered the
spacious courtroom, Dyer introduced me to Ronald McLaughlin,
attorney for the Office of Chief Counsel at the Arkansas
Department of Human Services. He was accompanied by
D.H.S. social workers. I was also introduced to Ms.
Melissa Greene, a CASA volunteer who would later testify
in one of the cases.
The CASA volunteers
are an important facet of the juvenile justice system.
They are not appointed in all of the cases, but when
they are they play an important role. They get to
know the child and the child's circumstances, the
parents and foster parents, and are encouraged to
interview and assess anyone who has an impact on the
well-being of the child. They are the eyes and ears
of the court.
Five cases were heard
the day I attended court. In only two was there a
lawyer to represent anyone other than D.H.S. or the
child. One case involved an attractive, well-dressed
teenaged girl. She was tall, with long, curly auburn
hair and peaches and cream complexion. The child was
a ward of the state because her mother was involved
with controlled substances. At sixteen the plan was
for her to be supported by the juvenile system until
she reaches her majority. She was living with a therapeutic
foster family that had several other children. The
hearing went smoothly. It began as a periodic check-up,
for the judge to be sure everything was as it should
be. At an appropriate time, her attorney ad litem,
Ms. Dyer, stood and told the court that she agreed
with the current disposition of the case, and that
she believed that in the best interest of her client,
she should remain with the assigned foster home. However,
because the client had some things she wanted to share
with the court, she was calling her to testify. The
courtroom was cleared of everyone except the lawyers
and other professionals. Family and foster family
were ushered out at Ms. Dyer's request.
Under carefully crafted
questions proffered by Ms. Dyer, the teenager explained
that she is an athlete and wishes to be able to live
with her softball coach. She explained further that
there were problems with her foster family. She was
made to perform chores that others were not, and she
was generally unhappy there. She felt she was made
to pay for time at the batting cage that the state
should pay for. All of her babysitting money went
for athletic equipment and practice. This would not
be so, she said, if she were allowed to live with
her coach. The attorney for D.H.S. stated that there
was money to pay for her softball expenses, but that
she was required to perform the assigned chores at
her foster home before it could be paid. Judge Hanshaw
ordered D.H.S. to make an evaluation of the coach's
home and set the case for a hearing on the matter.
He also admonished the teenager, "Your troubles
go with you wherever you go."1
ADVOCACY IS IN THE BEST INTEREST OF THE CHILD
This drama illustrates
a critical difference between representation of a
minor as attorney ad litem, and that of attorney-client.
The ad litem's function is to advocate what is in
the best interest of the child. Because the best interest
of the child is not always what the child wishes,
there can be a conflict. This is resolved by allowing
the court to know what the difference is, as Ms. Dyer
did so skillfully in this case. In some situations
this may require the court to appoint an additional
lawyer to represent the child in a traditional attorney-client
relationship. This conflict has been the subject of
numerous law journal articles.2 The Arkansas Supreme
Court by Administrative Order Number 15 simplified
the conflict by providing that "... if the child's
wishes differ from the ad litem's determination of
the child's best interest, the ad litem shall communicate
the child's wishes to the court."
AD LITEM-CHILD RELATIONSHIP
Another way the practice
of the ad litem is different from representation of
an adult client is the personal relationship. Donna
Gay said that when she was ad litem for a child in
a domestic relations custody dispute she might take
the child to McDonald's to have an interview in a
relaxed atmosphere. DeeNita Moak had an especially
challenging client recently in a domestic relations
custody case. She went to the child's home to interview
her client. The father was there, but the child would
not come out of her bedroom. Ms. Moak went in the
bedroom to encourage her to make friends. It took
40 minutes and a lot of game playing before the child
would come out from under the covers.
CONFIDENTIALITY
It takes a lot of work
to gain the confidence of these clients, yet the relationship
is not "confidential."3 This can sometimes
be tricky. The ad litem must explain to the client
that confidences cannot always be kept secret. Sometimes
they must be shared with the court, because the court
needs this information to make decisions that are
in the best interest of the child. Treeca Dyer always
tells her kids that if she needs to share a secret
with the judge she will let them know when she will
do this, and she will tell them why she believes it
must be done.
QUALIFICATIONS OF AD LITEMS
These are just some
of the ways that representation of a child differs
from representation of an adult. The training for
these attorneys, therefore, must also be specialized.
The Administrative Office of the Courts, which handles
all of the administrative details, also provides this
specialized training.4 It requires ten hours of training
to qualify as an attorney ad litem, then four hours
a year after that to remain qualified.5 The subjects
of this training include not only the expected substantive
and procedural law and ethics, but also include child
development, the dynamics of abuse and neglect, and
family dynamics. The family dynamics category may
include substance abuse, domestic violence and mental
health issues. Additional training may include such
topics as grief and attachment, and resources and
services. The same type of training is required of
attorneys ad litem in domestic relations cases and
guardianship cases where custody is in dispute.6
A recent training attended
by Ms. Dyer included family dynamics, child development,
the dynamics of sex abuse, and mental health issues.
In addition, they addressed problems of attention
deficit disorder and the medications used for ADD
and oppositional defiant problems. Another subject
explained was I.D.E.A., the Individuals with Disability
Education Act. Dyer explained that "this kind
of training is good as it makes one more sensitive
to issues of the kids involved."
Ad litem work for dependent
and neglected children requires more than client conferences,
the usual investigation, and appearance in court.7
The responsibilities these attorneys have is forecast
in the clinical qualifications. To qualify as an attorney
ad litem for a child or a parent in dependency neglect
cases the attorney must second chair in five types
of hearings: Emergency, Adjudication/Disposition,
Review, Permanency Planning, and Termination of Parental
Rights. In addition there are periodic staffings and
working sessions with other child and family services
agencies. The child not only needs someone to speak
for her but needs someone to speak for her who knows
the system and what support services are out there
that may be made available to the child and the child's
family, and when there is a dispute as to whether
these services should be made available, to be able
to bring the issue to the attention of the juvenile
judge at an appropriate hearing.
There are 154 lawyers
qualified to be ad litems in domestic relations custody
cases and 134 for dependency-neglect cases in juvenile
court. Of those 134, only 92 are active. A total of
49 (out of 115) judges in Arkansas appointed attorney
ad litems to represent children in domestic relations
custody cases. That represents 22 out of 28 judicial
circuits.
FEES FOR AD LITEMS
Fees for the domestic
relations custody ad litems may be paid by the Administrative
Office of the Courts, although the judge may require
the parties to pay all or a part of the expenses of
attorneys ad litem, according to their ability to
pay.8 The fees are paid at a maximum rate of $90 an
hour. The total fee is capped at $1,250 per case.
Out-of-pocket expenses may be reimbursed, but are
included in the cap.9 Because of this limitation some
lawyers have suffered financially in lengthy cases.
The ad litem is appointed for the duration of the
case and must follow it to the end. Judge Mary McGowan
said that even with the assistance of exceptional
lawyers who are willing to serve, "there are
some cases that won't go away, and some ad litems
have been badly burned." Most of the dependency-neglect
ad litems are under contract for a definite number
of cases. Treeca Dyer's contract is for 30 cases,
and for that she is paid $2,000 a month. That averages
out to $800.00 a year for each case. This is the standard
amount paid for these cases.
HOW USEFUL IS THE AD LITEM?
With all of this special
training and funding, just what good is it to have
one more lawyer in the courtroom? The answer is easy
in dependency and neglect cases. The attorney ad litem
plays an essential role. In those cases the parent
obviously cannot advocate for the child, and this
leaves the child at the mercy of a not always sympathetic
or supportive Department of Human Services.10
For domestic relations
custody cases, especially in high-conflict cases,
disputes have been seen as a form of child abuse and
maltreatment.11 Judges who have used the services
of attorneys ad litem say that it does a lot of good.
Judge Chester T. Harhut, of the Court of Common Pleas
in Scranton, Pa., who sits as a Family Court judge,
stated:
"Without relevant
facts, court orders may unwittingly compound children's
problems. Thus, a judge often needs more than the
standard litigation
process to be confident that the court order protects
children and provides for their best interest."12
Some of the Arkansas judges use ad litems on a regular
basis. Circuit Judge Mary McGowan said that this is
because it "gives the judge peace of mind that
the child's interests are represented." She continued
to explain that the additional lawyer does not make
a custody case more heated and difficult. On the contrary,
it makes the parents realize that the child's needs
must be considered. The presence of the ad litem makes
the parents realize that it is not just about "me
and him." Judge McGowan said that she "cannot
think of a case in which they were not a tremendous
help." Donna Gay explained that "A lot of
domestic relations lawyers tell clients on the front
end that they should not do anything to hurt the children.
The ad litem can say 'you need to stop and look at
what you are doing to this child or children.' Another
benefit is the ad litem can suggest counseling."
In domestic relations
custody cases the trial judge must constantly try
to figure out what is in the best interest of the
child, yet the judge does not have the power to investigate
or to discover facts that would help make this decision.
The judge is therefore left with only the information
provided by each of the battling parties and for many
reasons that may not be complete. In Pierce v.
Pierce13 the Court of Appeals remanded a custody
case with instructions to the trial judge to appoint
an attorney ad litem so that a complete picture of
the child's situation could be considered.
CONCLUSION
It is unfortunate when
children have to become involved in the court system,
either as dependent-neglected or as objects of domestic
relations custody battles. It is important that every
effort be made to give each and every child the best
chance possible for a good life. Our attorneys ad
litem are dedicated to making that possible. They
are to be commended.
ENDNOTES
1 This story, although
essentially true, has been fictionalized to protect
the identity of the child.
2 Note, Assisting
Minors Seeking Abortions in Judicial Bypass Proceedings:
A Guardian ad Litem Is No Substitute for an Attorney.
55 Vand. L. Rev. 581 (2002); Rebecca H. Heartz,
Guardians
Ad Litem in Child Abuse and Neglect Proceedings:
Clarifying the Roles to Improve Effectiveness,
27
Family L. Q., 327 (1993); Tara Lea Muhlhauser and
Douglas D.
Knowlton, The"Best Interest Team" Exploring
the Concept of
a Guardian Ad Litem Team, 71 N. Dak. L. Rev. 988
(1995).
3 Administrative Order
Number 15 Attorney Qualifications and Standards.
Sec. 2. j. "Attorney-client or any other privilege
shall not
prevent the ad litem from sharing all information
relevant to the
best interest of the child with the court." [in
dependency- deglect
cases];Sec. 5. g. "An attorney ad litem shall
not be prevented
by any privilege, including the Lawyer-client privilege,
from
sharing with the court all information relevant to
the best interest
of the child" [in domestic relations custody
cases]; The Arkansas
Supreme Court, with the advice of circuit judges,
is authorized
to adopt standards of practice and qualifications
for service
for attorneys who seek to be appointed to provide
legal representation
for children in custody cases. Ark. Code Ann. Sec.
9-13-101(d)(2)(Repl. 2002)
4 Ark. Code Ann. Secs.
9-24-401; 9-13-106.
5 Administrative Order
15, Sec. 1.a.(3); Sec. 4.b.(1).
6 Administrative Order
15, Sec. 1. b; Sec. 3. k.; Sec. 4. b.
7 Administrative Order
15, Sec. 1. c. (1) lists the types of hearings
that a lawyer must attend to qualify as an attorney
ad litem:
Emergency, Adjudication/ Disposition, Review Permanency
Planning, and Termination of Parental Rights.
8 Ark. Code Ann. Sec.
9-13-101(d)(5)(A) (Repl. 2002)
9 Ark. Code Ann. Sec.
9-13 101(d)(5)(B)(Repl. 2002).
10 James M. Luffman, "The Expanding
Role of the Guardian Ad Litem
under the Arkansas Juvenile Code," 12 Ark.
Lawyer 11, Spring
1994.
11 H. Patrick Stern, M.D., Battered
Child Syndrome: Is it a Paradigm
for a Child of Embattled Divorce, 22 U. Ark. Little
Rock
L. Rev. 335 (2000); Kathleen Coulborn Faller, Ph.D.,
Child
Maltreatment and Endangerment in the Context of Divorce,
22 U. Ark. Little Rock L. Rev.429 (2000).
12 Judge Chester T. Harhut, An
Expanded Role for the Guardian ad
Litem, 2000 Juv. and Fam. Ct. J. 31 (Summer, 2000)
13 Pierce v. Pierce, 73 Ark.
App. 339, 43 S.W.3d 192 (2001).
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