Florida[1]

Last edited: November 2005

 

 

Summary and Analysis

 

Children in Florida are represented in juvenile protection matters primarily through court appointed special advocates, provided through the Statewide Office of the Guardian ad Litem (GAL). Florida law provides that the court shall appoint a GAL to represent the best interests of the child in any proceeding if that child is a victim of, or witness to, child abuse or neglect; in a dependency proceeding in which the child is alleged to be a victim of abuse or neglect, or the victim of a sexual offense or witness to a sexual offense involving another minor; or in a family law proceeding in which there is a well-founded allegation of child abuse that is verified and determined by the court to be well-founded. Florida law authorizes the appointment of a GAL in other types of cases, when deemed appropriate, if there are sufficient program resources available.

 

The State of Florida Guardian Ad Litem (GAL) Program resulted from the federal Child Abuse Prevention and Treatment Act of 1974. This act provided financial assistance to states for programs that prevented, identified and treated child abuse and neglect. To obtain the funds provided by the Act, states were required to provide for the appointment of GALs to represent children involved in judicial proceedings alleging child abuse or neglect. While such funds were actually not used by the State of Florida for the provision of GAL representation for children, the Act provided the impetus for the Florida Legislature to start providing statewide GAL services.

 

In 1980, the Florida Legislature appropriated funds to the Office of the State Courts Administrator to implement a pilot program that would examine the feasibility and effectiveness of a volunteer-based program for the delivery of GAL services for abused and neglected children. Following the success of the program, the Legislature provided funding for the establishment of GAL programs in every circuit to represent the best interests of abused and neglected children through a volunteer model. By 1990, all of Florida's twenty judicial circuits had programs for the delivery of GAL services that were administratively managed by the trial courts.

 

The supervision of each circuit GAL Program is the responsibility of the Chief Judge in that circuit, according to State of Florida Guardian Ad Litem Standards of Operation promulgated by the Florida Supreme Court (see Standards below). These standards were developed to ensure quality representation of the best interests of children in abuse and neglect judicial proceedings by well-trained advocates. Currently, the Statewide Office of the Guardian ad Litem, created two years ago by the legislature, is in the process of drafting a new set of standards and operating procedures.[2] Qualifications for guardian ad litem volunteers are established by state law and further delineated in the Standards of Operation and local circuit policy.

 

Although Florida’s statutes provide that an attorney can be appointed as a GAL, most GALs appointed in Florida are non-lawyer advocates.  These non-lawyer advocates are represented by attorneys who are on staff of the Statewide Office of the Guardian ad Litem. The role of these attorneys is to provide legal assistance to the GAL when such assistance is necessary for the GAL to effectively represent the best interest of the child.

 

Florida’s courts also have the authority to appoint attorneys ad litem, in addition to guardians ad litem, to provide legal representation to the child, but this rarely happens. Although Florida’s statutes do not make mention of such attorneys ad litem or define them, they have been used for years and are available as indicated in the Juvenile Rules of Procedure.[3] Attorneys ad litem are paid by the Statewide Office of the Guardian ad Litem. There exists one circumstance in which a dependent child in Florida must be appointed an attorney – not attorney ad litem.  This is where a child is facing an involuntary commitment to a locked psychiatric treatment facility and does not agree to this placement. (See Florida Rules of Juvenile Procedure § 8.350 below).

Sources of Law

 

Statutes

 

Florida Statutes § 39.822[4] (Appointment of guardian ad litem for abused, abandoned, or neglected child)

(1) A guardian ad litem shall be appointed by the court at the earliest possible time to represent the child in any child abuse, abandonment, or neglect judicial proceeding, whether civil or criminal. Any person participating in a civil or criminal judicial proceeding resulting from such appointment shall be presumed prima facie to be acting in good faith and in so doing shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed.

 

(2) In those cases in which the parents are financially able, the parent or parents of the child shall reimburse the court, in part or in whole, for the cost of provision of guardian ad litem services. Reimbursement to the individual providing guardian ad litem services shall not be contingent upon successful collection by the court from the parent or parents.

 

(3) The guardian ad litem or the program representative shall review all disposition recommendations and changes in placements, and must be present at all critical stages of the dependency proceeding or submit a written report of recommendations to the court. Written reports must be filed with the court and served on all parties whose whereabouts are known at least 72 hours prior to the hearing.

 

Florida Statutes § 39.807[5] (Termination of Parental Rights; Right to counsel; Guardian ad litem)

(2)(a) The court shall appoint a guardian ad litem to represent the best interest of the child in any termination of parental rights proceedings and shall ascertain at each stage of the proceedings whether a guardian ad litem has been appointed.

 

(b) The guardian ad litem has the following responsibilities:

 

1. To investigate the allegations of the petition and any subsequent matters arising in the case and, unless excused by the court, to file a written report. This report must include a statement of the wishes of the child and the recommendations of the guardian ad litem and must be provided to all parties and the court at least 72 hours before the disposition hearing.

2. To be present at all court hearings unless excused by the court.

3. To represent the best interests of the child until the jurisdiction of the court over the child terminates or until excused by the court.

 

(c) A guardian ad litem is not required to post bond but shall file an acceptance of the office.

 

(d) A guardian ad litem is entitled to receive service of pleadings and papers as provided by the Florida Rules of Juvenile Procedure.

 

(e) This subsection does not apply to any voluntary relinquishment of parental rights proceeding.

 

Florida Statutes § 39.820[6] (Definitions)

As used in this part, the term:

 

(1) "Guardian ad litem" as referred to in any civil or criminal proceeding includes the following:  a certified guardian ad litem program, a duly certified volunteer, a staff attorney, contract attorney, or certified pro bono attorney working on behalf of a guardian ad litem or the program;  staff members of a program office;  a court-appointed attorney;  or a responsible adult who is appointed by the court to represent the best interests of a child in a proceeding as provided for by law, including, but not limited to, this chapter, who is a party to any judicial proceeding as a representative of the child, and who serves until discharged by the court.

 

Cases

 

S.C. v. Guardian ad litem[7]

Holding that a “mature minor” has the right to assert psychotherapist/patient privilege, and suggesting a general right to representation.

 

M.C. v. Department of Children and Family Services[8]

Holding that mother, who was a minor, was not entitled to be provided with a guardian ad litem in termination of parental rights proceeding, because the rule of juvenile procedure that states a child will represented by a guardian ad litem in such a proceeding does not include a parent who happens to be a minor.

 

W.R. v. Department of Children and Family Services[9]

Proceeding was brought to terminate parental rights. The Circuit Court entered an order denying the petition to terminate, but readjudicated the children dependent and placed them together in long term foster care. Parents appealed. The District Court of Appeal held that lack of "active" guardian ad litem to represent best interests of children in proceeding to terminate parental rights did not prevent trial court, upon denial of petition to terminate, from readjudicating children dependent based on specific findings of sexual abuse.

 

Department of Health and Rehabilitative Services v. Coskey[10]

Holding that the Department of Health and Rehabilitative Services was not responsible for attorney’s fees for the counsel appointed for a child in a dependency case because it was the guardian at litem who had requested appointment, not the Department.

 

Brevard County v. Department of Health and Rehabilitative Services[11]

Holding that although the county was not responsible for paying attorney’s fees to the child’s counsel, the Department of Health and Rehabilitative Services was responsible for paying the fees because they had requested that counsel be appointed.

 

Marion County v. Johnson[12]

Holding that the Department of Health and Rehabilitative Services rather than the country was required to pay attorney’s fees for an attorney ad litem appointed to a child in a dependency hearing because the attorney was performing legislatively mandated duties of the Department.

 

Regulations

 

Florida Rules of Juvenile Procedure, Part II - Dependency and termination of parental rights proceedings

 

Rule 8.215[13] (Guardian ad litem)

(a) Request. At any stage of the proceedings, any party may request or the court may appoint a guardian ad litem to represent any child alleged to be dependent.

 

(b) Appointment. The court shall appoint a guardian ad litem to represent the child in any proceeding as required by law and shall ascertain at each stage of the proceeding whether a guardian ad litem should be appointed if one has not yet been appointed.

 

(c) Duties and Responsibilities. The guardian ad litem shall be a responsible adult, who may or may not be an attorney, or a certified guardian ad litem program, and shall have the following responsibilities:

(1) To gather information concerning the allegations of the petition and any subsequent matters arising in the case and, unless excused by the court, to file a written report. This report shall include a summary of the guardian ad litem's findings, a statement of the wishes of the child, and the recommendations of the guardian ad litem and shall be provided to all parties and the court at least 72 hours before the hearing for which the report is prepared.

(2) To be present at all court hearings unless excused by the court.

(3) To represent the interests of the child until the jurisdiction of the court over the child terminates, or until excused by the court.

(4) To perform such other duties as are consistent with the scope of the appointment.

. . .

(f) Practice of Law by Lay Guardians. The duties of lay guardians shall not include the practice of law.

 

(g) Substitution or Discharge. The court, on its own motion or that of any party, including the child, may substitute or discharge the guardian ad litem for reasonable cause

 

Rule 8.217[14] (Attorney Ad Litem)

 

(a) Request.  At any stage of the proceedings, any party may request or the court may consider whether an attorney ad litem is necessary to represent any child alleged to be dependent, if one has not already been appointed.

 

(b) Appointment.  The court may appoint an attorney ad litem to represent the child in any proceeding as allowed by law.

 

(c) Duties and Responsibilities.  The attorney ad litem shall be an attorney who has completed any additional requirements as provided by law.  The attorney ad litem shall have the responsibilities provided by law.

 

Rule 8.350[15] (Placement of Child into Residential Treatment Center After Adjudication of Dependency)

 

(a) Placement.

. . .

(3) Whenever the department believes that a child in its legal custody may require placement in a residential treatment center or hospital, the department shall arrange to have the child assessed by a qualified evaluator as provided by law and shall file notice of this with the court and all parties.  Upon the filing of this notice by the department, the court shall appoint a guardian ad litem for the child, if one has not already been appointed, and may also appoint an attorney for the child.  Both the guardian ad litem and attorney, if appointed, shall meet the child and shall have the opportunity to discuss the child's suitability for residential treatment with the qualified evaluator conducting the assessment.  Upon the completion of the evaluator's written assessment, the department shall provide a copy to the court and to all parties.  The guardian ad litem shall also provide a written report to the court and to all parties indicating the guardian ad litem's recommendation as to the child's placement in residential treatment and the child's wishes.

 

(4) If the department seeks to place the child in a residential treatment center or hospital, the department shall immediately file a motion for placement of the child with the court.  This motion shall include a statement as to why the child is suitable for this placement and why less restrictive alternatives are not appropriate and also shall include the written findings of the qualified evaluator.  The motion shall state whether all parties, including the child, are in agreement.

 

(5) If the evaluator's written assessment indicates that the child requires immediate placement in a residential treatment center or hospital and that such placement cannot wait for a hearing, then the department may place the child pending a hearing, unless the court orders otherwise.

 

(6) The guardian ad litem must be represented by an attorney at all proceedings under this rule, unless the guardian ad litem is acting as an attorney.  If the department's motion, the guardian ad litem's report, or another party based on communication with the child indicates that the child does not agree with the department's motion, then the court shall appoint an attorney to represent the child, if one has not already been appointed.

 

(7) Upon the filing of a motion for placement, the court shall set the matter for a status hearing within 48 hours, excluding weekends and holidays. The department shall timely provide notice of the date, time, and place of the hearing to all parties and participants.

 

(8) The child's attorney or guardian ad litem shall notify the child of the date, time, and place of the hearing.  No hearing shall proceed without the presence of the child's guardian ad litem and attorney, unless excused by the court for good cause shown.  Should the hearing occur in the absence of the guardian ad litem and attorney, upon request the court shall set the matter for an additional hearing within 24 hours, at which time the attorney and guardian ad litem shall be present.

 

(9) If the child appears at the status hearing not represented by an attorney, the court shall directly inquire of the child whether he or she disagrees with the motion for placement.  If the child does not appear and is not represented by an attorney at the status hearing, the court shall diligently pursue all available information to determine if the child disagrees with the department's motion for placement.  If no party disagrees with the department's motion at the status hearing, then the motion for placement may be approved by the court.  However, if any party, including the child, disagrees, then the court shall set the matter for hearing within 10 working days.

 

(10) If counsel is not immediately available to represent the child, and the court determines that the child will be harmed if the hearing on placement is postponed, then the hearing may be held in the absence of counsel.  The child shall be present at the hearing unless the court determines pursuant to subdivision (c) that a court appearance is not in the child's best interest. In such circumstances, the child shall be provided the opportunity to express his or her views to the court by a method deemed appropriate by the court. Further, if counsel is not available at the time of the hearing, counsel shall be appointed as soon as practical thereafter and the court shall set an additional hearing at which time both counsel and the child shall be present.

 

           (11) Hearing on Placement.

(A) At the hearing, the court shall consider, at a minimum, all of the following:

(i) based on an independent assessment of the child, the recommendation of a department representative or authorized agent that the residential treatment or hospitalization is in the child's best interest and a showing that the placement is the least restrictive available alternative;

(ii) the recommendation of the guardian ad litem;

(iii) a case review committee recommendation, if there has been one;

(iv) the written findings of the evaluation and suitability assessment prepared by a qualified evaluator;  and

(v) the views regarding placement in residential treatment that the child expresses to the court.

 

(B) All parties shall be permitted to present evidence and witnesses concerning the suitability of the placement.

 

(C) If the court determines that the child is not suitable for residential treatment, the court shall order the department to place the child in the least restrictive setting that is best suited to meet the child's needs.

. . . .

(c) Presence of Child.  The child shall be present at all court hearings unless the court finds that the child's mental or physical condition is such that a court appearance is not in the child's best interest.  In such circumstances, the child shall be provided the opportunity to express his or her views to the court by a method deemed appropriate by the court.

 

Florida Rules of Juvenile Procedure, Part III - Proceedings for Families and Children in Need of Services

 

Rule 8.617[16] (FLA. RULES OF JUV. PROCEDURE, Rule 8.Guardian ad Litem)

(a) Appointment. At any stage of the proceedings any party may request, or the court may appoint, a guardian ad litem to represent any child alleged to be in need of services or from a family in need of services.

 

(b) Qualifications; Responsibilities. The guardian ad litem shall be an attorney or other responsible adult and shall have the following responsibilities:

(1) To investigate the allegations of the petition and any subsequent matters arising in the case and, unless excused by the court, to file a written report. This report shall include a statement of the wishes of the child and the recommendations of the guardian ad litem and shall be provided to all parties and the court at least 48 hours before the disposition hearing.

(2) To be present at all court hearings unless excused by the court.

(3) To represent the interest of the child until the jurisdiction of the court over the child terminates or until excused by the court.

(4) To perform such other duties and undertake such other responsibilities as the court may direct.

. . . .

(e) Lay Guardians' Duties. The duties of lay guardians shall not include the practice of law.

 

(f) Substitution or Discharge. The court, on its own motion or that of any party, including the child, may substitute or discharge the guardian ad litem for reasonable cause.

 

Guardian Ad Litem Program Standards of Operation, issued by the Supreme Court of Florida[17]

 

Preamble: Program Structure

 

(a) Scope: Purpose of Program

The State of Florida Guardian Ad Litem Program (hereinafter referred to as the GAL Program) was created to implement Section 415.508, 914.17(1), 61.401, and 39.465, Florida Statutes. Administrative Order November 27, 1995 of the Chief Justice adopts the following Standards of Operation.

 

The GAL Program operates under the auspices of the judicial branch; the management and supervision of each circuit GAL Program, its employees, and volunteers is the responsibility of the Chief Judge in that circuit.

 

(b) General Principles

The mission of the GAL Program is to advocate for the best interests of children in judicial proceedings. The GAL program recruits, trains and supervises volunteers to represent the best interests of children in juvenile, criminal and family cases.

 

(c) Definition of Guardian ad Litem

“Guardian ad Litem,” for the purpose of the court appointment of the GAL Program, is a volunteer certified by the State of Florida GAL Program to act in dependency cases, family law cases, and/or criminal cases.

 

(d) Role of the Guardian Ad Litem

Florida law provides that the court shall appoint a guardian ad litem to represent the best interest of a child in any proceeding if that child is a victim of, or witness to, child abuse or neglect; in a dependency proceeding in which the child is alleged to be a victim of abuse or neglect, or the victim of a sexual offense or witness to a sexual offense involving another minor; or in a family law proceeding in which there is a well-founded allegation of child abuse that is verified and determined by the court to be well-founded.

 

Florida law authorizes the appointment of a guardian ad litem in other types of cases, when deemed appropriate, if there are sufficient program resources available.

 

(e) Role of the Pro Bono Attorney

The role of the pro bono attorney is to provide legal assistance to the guardian ad litem when such assistance is necessary for the guardian ad litem to effectively represent the best interest of the child. The pro bono attorney may also provide legal support to the GAL Program under separate and specific order of appointment. [For purposes of these standards, the role of the pro bono attorney is distinguished from that of an attorney ad litem, who is appointed by the court and is independent of the GAL Program, to provide legal representation to the child.]

 

(f) Role of the Program Attorney

The role of the program attorney is to provide legal counsel, representation, and other legal services to the circuit GAL Program, professional staff, volunteer guardians ad litem and pro bono attorneys. The program attorney provides legal advice on issues affecting children served by the program, files pleadings, and attends court hearings and hearings with social service agencies concerning case disposition and child placement.

 

(g) Role of the Office of the State Courts Administrator (OSCA)

The role of the OSCA staff serving the GAL Program is to coordinate the development and implementation of statewide guardian ad litem policies, standards, and guidelines when appropriate. The OSCA staff also provide technical assistance, guidance and support to assist local circuits and their GAL Program staff in the effective operation of the GAL Program offices and in the fulfillment of statutory mandates. In addition, the OSCA staff collect statewide data on the activities of the guardian ad litem volunteers and program offices. The OSCA does not become involved in individual cases or circuit program management.

 

Section II: Program Administration, Standard 2.0 (Appointment of Guardian Ad Litem)

Subject to the availability of certified guardians ad litem and supervisory staff, the GAL Program will accept appointment by the court in all civil and criminal child abuse and neglect proceedings. The program will also accept appointment in any criminal case in which a child is a victim of, or witness to, physical or sexual abuse, and in any family law case involving an allegation of child abuse or neglect which has been determined by the court to be well founded.

 

In addition, the program may accept appointment in an action for dissolution of marriage, modification, parental responsibility, custody, or visitation, if the court finds it is in the best interest of the child. The court may also appoint a guardian ad litem in any other criminal proceeding in which a minor is involved as either a victim or witness.

 

Assignment of volunteers and acceptance of cases will be according to a prioritization criteria developed by the circuit GAL Program and approved by the chief judge.

 

Ethical Provision

 

Florida Bar Rules of Professional Conduct, Rule 4-1.14[18] (Client Under a Disability)

(a) Maintenance of Normal Relationship. When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) Appointment of Guardian. A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

 

Local Contact Information

 

Gerard F. Glynn
Associate Professor
Barry University
Dwayne O. Andreas School of Law
6441 East Colonial Drive
Orlando, FL  32807
Phone - (321) 206-5750   Fax - (321) 206-5755
E-Mail - gglynn@mail.barry.edu

 

Additional Resources and Links

 

Florida Guardian ad Litem Program

http://www.gal.fl.gov/index.asp

 

Florida Family Court

http://www.flcourts.org/gen_public/family/familycourts.shtml

 

 

 



Endnotes

[1]  This page is also available as a .pdf Document, and Word Document.

[2] Updates on the Statewide Office of the Guardian ad Litem’s process of drafting a new set of standards and operating procedures for the GAL program can be tracked at http://www.gal.fl.gov/index.asp.

[3] According to our contact Gerard Glynn, there is a statutory reference to attorneys ad litem in Florida Statues Annotated §39.4086, but this refers to a specific project that is no longer in existence, although the statute remains. 

[4] Fla. Sta. Ann. § 39.822, available here, and also as .pdf Document, and also as Word Document.

[5] Fla. Sta. Ann. § 39.807, available here, and also as .pdf Document, and also as Word Document.

[6] Fla. Sta. Ann. § 39.820, available here, and also as .pdf Document, and also as Word Document.  For additional information about guardian ad litem qualifications see Fla. Sta. Ann. § 39.821, available here, and also as .pdf Document, and also as Word Document.

[7] S.C. v. Guardian at litem, 845 So. 2d 953 (Fla. Dist. Ct. App. 2003), available here, and also as .pdf Document, and also as Word Document.

[8] M.C. v. Department of Children and Family Services, 814 So.2d 449 ( Fla. Dist. Ct. App. 2001), available here, and also as .pdf Document, and also as Word Document.

[9] W.R. v. Department of Children and Family Services, 701 So.2d 651 (Fla. Dist. Ct. App. 1997), available here, and also as .pdf Document, and also as Word Document.

[10] Department of Health and Rehabilitative Services v. Coskey, 599 So. 2d 153 (Fla. App. Dist. 1992), available here, and also as .pdf Document, and also as Word Document.

[11] Brevard County v. Department of Health and Rehabilitative Services, 589 So. 2d 398 (Fla. App. Dist. 1991), available here, and also as .pdf Document, and also as Word Document.

[12] Marion County v. Johnson, 586 So. 2d 1163 (Fla. App. 5 Dist. 1991), available here, and also as .pdf Document, and also as Word Document.

[13] Fla. Rules Juv. Procedure, Rule 8.215, available here, and also as .pdf Document, and also as Word Document.

[14] Fla. Rules Juv. Procedure, Rule 8.217, available here, and also as .pdf Document, and also as Word Document.

[15] Fla. Rules Juv. Procedure, Rule 8.350, available here, and also as .pdf Document, and also as Word Document.

[16] Fla. Rules Juv. Procedure, Rule 8.617, available here, and also as .pdf Document, and also as Word Document.

[17] Guardian Ad Litem Program Standards of Operation, issued by the Supreme Court of Florida (Apr. 2003), available at http://www.floridasupremecourt.org/clerk/adminorders/2003/ad_litem_standards.pdf, and also here, and also as .pdf Document, and also as Word Document.

[18] Fla. Bar Rules Prof. Conduct, Rule 4-1.14, available at http://www.floridabar.org/divexe/rrtfb.nsf/FV?Openview&Start=1&Expand=4.2#4.2, and also here, and also as .pdf Document, and also as Word Document.