• Protect families and children from potentially harmful agency acts or omissions;
• Ensure that agency officials and state policy makers are aware of chronic problems in the child protection and welfare system so they can improve services.

OFCO fulfills its mission by acting on specific complaints, and by investigating broader systemic issues of concern that relate to the provision of child protection and welfare services. The purpose of OFCO’s systemic investigations is two-fold:

• Identify system-wide problems that adversely affect families and children, and
• Recommend steps which agency officials and state policy makers can take to address these problems. OFCO’s systemic investigations result in written reports that are provided to agency officials, the Governor, the Legislative Children’s Oversight Committee, and the public.

OFCO’s investigation into the issue of children’s representation by guardians ad litem (GAL) was prompted by a pattern of complaints received by the office in which the affected child was reported as having no one to represent him or her in child abuse and neglect proceedings. In the course of investigating these complaints, OFCO confirmed that many of the children, in fact, had not been provided with any representation. In some cases, appointment of a representative for the child was specifically requested of OFCO by the complainant; in others the absence of a representative appeared as a significant problem in the complaint; in still others the absence of a representative was simply one factor in the situation that gave rise to the complaint.

Abused and neglected children who are involved in court proceedings are, under federal funding requirements, entitled to have their best interests represented by a GAL.1 Because complaints to OFCO do not necessarily provide a representative sample of all children involved in child abuse and neglect proceedings, OFCO conducted a state-wide survey of juvenile court administrators to ascertain the number of children in Washington State whose best interests are not being represented by a GAL in these proceedings. Findings from this survey are the focus of this report and form the basis of OFCO’s recommendations to state policy makers.

Guardians ad litem are intended to provide the court with an independent perspective on what constitutes a child’s best interests. Federal law states that it is the role of a GAL "to obtain first-hand, a clear understanding of the situation and needs of the child, and to make recommendations to the court concerning the best interests of the child."2

Washington law specifically provides that the role of GALs in child abuse and neglect proceedings includes, but is not limited to, the following duties:

• To represent and be an advocate for the best interest of the child;
• To collect information relevant to the child’s situation;
• To monitor all court orders for compliance and to bring to the court’s attention any change in circumstances that may require a modification of the court’s order; and
• To report to the court information that the GAL has on the legal status of a child’s membership in any Indian tribe or band.3

Guardians ad litem are not parties to child abuse and neglect proceedings. Rather they are deemed to be officers of the court.4 Parties to child abuse and neglect proceedings include the child, the child’s parent or parents, and the Department of Social and Health Services (DSHS). Parents are generally represented by private or publicly funded defense attorneys, while DSHS is represented by attorneys from the Office of the Attorney General. Guardians ad litem are authorized to access all information available to the state or agency on the case. Moreover, they are entitled to the same notice of proceedings, and have the same right as parties to attend hearings and present evidence.5

Washington counties employ different models of GAL representation:

• Volunteer Court-Appointed Special Advocate (CASA): CASA volunteers are lay members of the community who are trained and supervised through county-based CASA programs. Twenty-five of Washington’s 39 counties currently have CASA programs.6 Some of the CASA programs have an attorney on staff who provides advice to the CASA volunteer on legal issues affecting the child, and who may also represent the CASA volunteer in child abuse and neglect proceedings.
• Professional GAL: Some courts appoint non-attorney professionals, e.g., probation officers, social workers, to act as GALs in child abuse and neglect proceedings.
• Attorney GAL: Some courts appoint attorneys to serve as GALs for children in child abuse and neglect proceedings.7

Attempts to compare the relative effectiveness of these models has produced varying results. However, national studies clearly demonstrate that child representation accelerates case resolution.8

All persons applying to become paid GALs after January 1, 1998 must complete the training outlined in the curriculum developed by the Office of the Administrator for the Courts (OAC). Volunteer CASA programs have the option to adopt the OAC curriculum or present an equivalent training program that must be approved by the OAC. The OAC curriculum is oriented toward providing a prospective GAL with the knowledge needed for proficient practice (e.g., understanding the law relating to representing children), the skills needed to complete responsibilities (e.g., report writing, interviewing), and the abilities required to perform complex decision-making (e.g., adhering to strict ethical standards).

The curriculum focuses on a variety of topics, including:

• Ethics
• The law and legal process
• Child development
• Forensic investigative and interviewing techniques
• Systems, agencies and resources
• Chemical dependency and mental health
• Child abuse and neglect
• Domestic violence, and
• Cultural diversity.9

As used in this report, the term "child abuse and neglect proceedings" refers to juvenile court proceedings under chapter 13.34 RCW relating to the dependency of a child, or the termination of a parent and child relationship. Within the context of these proceedings, the courts are called upon to independently determine whether, due to alleged parental deficiencies, a child is dependent or a parent and child relationship should be terminated.10

It is the role of the court to ensure that the state is acting in the best interests of each child who is the subject of a child abuse and neglect proceeding.11 In addition, under federal and state law, the courts are to regularly review the provision of state services to every dependent child and his or her family to ensure they are receiving services for which they are eligible. These services must be reasonably appropriate for achieving family reunification or, if reunification is not appropriate or possible, securing for the child another permanent family. In this review process, the best interest of the child is the paramount concern.12

Recent changes in federal and state law, which are designed to achieve more timely decisions and stronger safety guarantees for abused and neglected children, have accelerated the dependency and termination process in Washington State. As a result these changes are demanding even more court involvement and supervision to ensure that children’s best interests are being served.13

The federal Child Abuse Prevention and Treatment Act (CAPTA) requires states receiving CAPTA grants to certify that the state has in effect and is enforcing, a state law that for every case involving an abused or neglected child which results in a judicial proceeding, a GAL shall be appointed to represent the child’s best interests. The GAL may be either a court-appointed special advocate (CASA) or an attorney, or both.14

According to Region 10 of the U.S. Department of Health and Human Services, Washington State receives approximately $1.25 million per biennium in CAPTA grants, and has made the required certification.15 Consistent with CAPTA requirements, Washington law requires the court to appoint a GAL for children who are the subject of a child abuse and neglect proceeding. However, Washington law also allows the court to decide not to appoint a GAL if it finds for "good cause" that the appointment is unnecessary.16

Washington State is the only state in the country with a statutory good cause exception. In 1988, the good cause exception in a related statute was vetoed by the governor because "the result will be to disqualify the state from eligibility to receive federal funds under [CAPTA]."17 Nevertheless, for reasons that are unclear, the good cause exception was left in the child abuse and neglect statute. While there is no definition or other guidance in statute or case law as to what constitutes good cause not to appoint, recent Washington case law has clarified that lack of resources is not good cause.18

Washington law also provides that the state requirement for a GAL appointment may be deemed satisfied if the child is represented by independent counsel.19 Independent counsel function as advocates who represent the expressed wishes of a child, as opposed to the perception of the child’s best interests.20 Washington law permits (but does not require) courts to appoint independent counsel in child abuse and neglect proceedings to represent the child’s position. This may occur under two circumstances: first, when the child requests legal counsel and is age 12 or older; and, second, if the GAL or the court determines that the child needs to be independently represented by counsel.21

142 USC 5106a(b)(2)(A)(ix).
242 USC 5106a(b)(2)(A)(ix).
3RCW 13.34.015(1).
4RCW 13.34.105(2).
5RCW 13.34.100(5).
6Three counties established CASA programs in 1998 (Klickitat, Okonagan, and Skamania).
7See Appendix A for a brief description of GAL programs by county.
8Berliner, L. & Fitzgerald, M., Court Appointed Special Advocates for Children in Washington State: A Review of Effectiveness (Washington State Institute for Public Policy, November 1998), at pp.10-11 [hereinafter referred to as the WSIPP Report].
9OAC Washington State GAL Training Curriculum: Title 13 & Title 26 Facilitators Guide, 1997, at p. 3.
10A "dependent child" is a child who: (a) has been abandoned; (b) has been abused or neglected by the child's caretaker; or (c) has no parent, guardian or custodian capable of adequately providing care, such that the child's physical or psychological development is at risk of substantial damage. RCW 13.34.030(4). Parental rights may be terminated after a child has been dependent for six months and the court finds that: (1) all services reasonably capable of correcting the parental deficiency within the foreseeable future have been offered or provided; (2) there is little likelihood that the parental deficiencies will be remedied so that the child can be returned to the parent's home within the near future, and; (3) that continuation of the parent and child relationship clearly diminishes the child's prospects for integration into a stable and permanent home. The court must also find that termination is in the child's best interest. RCW 13.34.180, .190.
11In re Dependency of JBS, 123 Wn.2d 1, 8-11, 863 P.2d 1344 (1993); RCW 13.34.190.
12In re Dependency of JBS, supra.
13See RCW 13.34.130; RCW 13.34.145; Adoption and Safe Families Act of 1997, P.L. 105-89, 42 USC sec. 671 et seq.
1442 USC 5106a(b)(2)(A)(ix). CAPTA also requires the state to track the number of the GAL's out-of-court visits to the child.
15According to the Children's Administration of the Department of Social and Health Services (DSHS), which administers the grant, these funds support a variety of activities, including: (1) regional coordinators for CPS program issues; (2) professional education and training; (3) a medical consultation network; (4) a model Project Child Advocacy Law Clinic; and (5) the annual state-wide Children's Justice Conference.
16RCW 13.34.100. The appointment of a GAL is valid until the court discharges the appointment or the court no longer has jurisdiction, whichever comes first. The GAL may also be discharged upon entry of an order of guardianship. RCW 13.34.100(4).
17See Partial Veto Message, House Bill No. 1585, Wash. Laws 1988, ch. 232.
18Dependency of AG & TG v. Allison Grey v. DSHS, Wash. Ct. App. (Div. 1), December 17, 1998. In this case, the Washington Court of Appeals reviewed the issue of the failure to appoint a GAL in a termination of parental rights proceeding. The Court of Appeals expressed concern about the absence of a GAL, and remanded the case to the trial court to determine whether the children were prejudiced by the GAL's absence. In its opinion, the court stated:

• "At oral argument, counsel for [the DSHS Division of Children and Family Services (DCFS)] candidly informed us that trial courts regularly fail to appoint a guardian ad litem in these circumstances or find good cause for not appointing one based on lack of resources. This is unacceptable. The statute is mandatory, and the children's interests are paramount. We cannot condone ignoring the statutory provision specifically designed to protect them. If resources are insufficient, DCFS should address the problem with the Legislature."