Rule Impacts Report

Juvenile

 RULE  AFFECTS  SUMMARY AND IMPACT

Rule 40.1

R-11-0013

AOC Contact: Caroline Lautt-Owens

Superior Court

Judges
Clerks
Administrators

Summary: This new rule establishes duties and responsibilities for attorneys and guardians ad litem relating to representation of children.   The petition for adoption of this rule was filed to promote higher quality representation for children in care, and to bar the appointment of untrained or poorly trained court-appointed representatives for children.

Attorneys and guardians ad litem appointed to represent children in dependency, guardianship, and termination cases in the State of Arizona are required to adhere to this rule. Privately retained attorneys are required to become equally familiar with the rule.  In addition to adhering to this rule, Arizona attorneys and guardians ad litem should be familiar with and consult national standards and references that are specified in a comment to the rule to ensure the highest standard of practice in this area of the law.

Examples of requirements under this rule:

  • Attorneys and guardians ad litem shall inform the child, in an age and developmentally appropriate manner, about the nature of the proceedings, the attorney's role, that the child has the right to attend hearings and speak to the judge, the consequences of the child's participation or lack of participation, the possible outcomes of each hearing, and other legal rights with regards to the proceeding and the outcomes of each substantive hearing.
  • The attorney and guardian ad litem shall meet in person with the child before the preliminary protective hearing, if possible, or within fourteen (14) days after the preliminary protective hearing. Thereafter, the attorney and guardian ad litem for the child shall meet in person with the child and have meaningful communication before every substantive hearing.
  • Attorneys and guardians ad litem shall be knowledgeable of the child welfare agencies, governmental programs, and community-based service providers and organizations serving children (e.g., behavioral health, developmental disability, health care, education, financial assistance, counseling support, family preservation, reunification, permanency services and juvenile justice).
  • Attorneys and guardians ad litem shall complete an introductory six (6) hours of court approved training prior to their first appointment unless otherwise determined by the presiding judge of the juvenile court in which the attorney or guardian is practicing for good cause shown, and an additional two (2) hours within the first year of practice in juvenile court. All attorneys and guardians ad litem shall complete at least eight (8) hours each year of ongoing continuing education and training.
With regard to the education requirement noted above, the rule further requires that:

Attorneys shall provide the judge with an affidavit of completion of the six (6) hour court-approved training requirement prior to or upon their first appointment as attorney or guardian ad litem for a child after the adoption of this rule, unless a waiver of this requirement has been obtained from the presiding judge of the juvenile court in which the appointment is to be made. The affidavit of completion shall include a list of courses including the name of the training, the date of the training, the training provider, and the number of hours for each course.

All attorneys shall file annually an affidavit with the presiding judge certifying their compliance with this section. Such affidavit shall be filed concurrently with the affidavit of compliance with State Bar MCLE and shall include a list of courses including the name of the training, the date of the training, the training provider and the number of hours for each course.

Impact: Each court should establish a process for obtaining and storing the affidavits of completion and compliance; and for assuring that attorneys have filed appropriate affidavits of compliance annually.

The comment to this rule states that Arizona courts have broad discretion in enforcing this rule and in imposing sanctions when appropriate.  Sanctions may include the removal of the attorney or guardian ad litem from a particular case or from representation of children for a period of time. The comment also states that attorneys providing representation in Arizona may also be subject to sanctions under the Arizona Rules of Professional Conduct for failure to adhere to the rule.