AN
ACT Relating to guardians ad litem; amending RCW 11.88.090, 13.34.100,
13.34.102, 13.34.105, 13.34.120, 26.12.175, 26.12.177, and 26.12.185; adding
new sections to chapter 26.12 RCW; adding new sections to chapter 11.88 RCW;
adding new sections to chapter 13.34 RCW; and creating a new section.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
11.88.090 and 1999 c 360 s 1 are each amended to read as follows:
(1)
Nothing contained in RCW 11.88.080 through 11.88.120, 11.92.010 through
11.92.040, 11.92.060 through 11.92.120, 11.92.170, and 11.92.180 shall affect
or impair the power of any court to appoint a guardian ad litem to defend the
interests of any incapacitated person interested in any suit or matter pending
therein, or to commence and prosecute any suit in his or her behalf.
(2)
Prior to the appointment of a guardian or a limited guardian, whenever it
appears that the incapacitated person or incapacitated person's estate could
benefit from mediation and such mediation would likely result in overall
reduced costs to the estate, upon the motion of the alleged incapacitated
person or the guardian ad litem, or subsequent to such appointment, whenever it
appears that the incapacitated person or incapacitated person's estate could
benefit from mediation and such mediation would likely result in overall
reduced costs to the estate, upon the motion of any interested person, the
court may:
(a)
Require any party or other person subject to the jurisdiction of the court to
participate in mediation;
(b)
Establish the terms of the mediation; and
(c)
Allocate the cost of the mediation pursuant to RCW 11.96.140.
(3)
Upon receipt of a petition for appointment of guardian or limited guardian,
except as provided herein, the court shall appoint a guardian ad litem to
represent the best interests of the alleged incapacitated person, who shall be
a person found or known by the court to:
(a)
Be free of influence from anyone interested in the result of the proceeding;
and
(b)
Have the requisite knowledge, training, or expertise to perform the duties
required by this section.
The
guardian ad litem shall within five days of receipt of notice of appointment
file with the court and serve, either personally or by certified mail with
return receipt, each party with a statement including: His or her training
relating to the duties as a guardian ad litem; his or her criminal history as
defined in RCW 9.94A.030 for the period covering ten years prior to the
appointment; his or her hourly rate, if compensated; whether the guardian ad
litem has had any contact with a party to the proceeding prior to his or her
appointment; and whether he or she has an apparent conflict of interest. Within
three days of the later of the actual service or filing of the guardian ad
litem's statement, any party may set a hearing and file and serve a motion for
an order to show cause why the guardian ad litem should not be removed for one
of the following three reasons: (i) Lack of expertise necessary for the
proceeding; (ii) an hourly rate higher than what is reasonable for the
particular proceeding; or (iii) a conflict of interest. Notice of the hearing
shall be provided to the guardian ad litem and all parties. If, after a
hearing, the court enters an order replacing the guardian ad litem, findings
shall be included, expressly stating the reasons for the removal. If the
guardian ad litem is not removed, the court has the authority to assess to the
moving party, attorneys' fees and costs related to the motion. The court shall
assess attorneys' fees and costs for frivolous motions.
No
guardian ad litem need be appointed when a parent is petitioning for a guardian
or a limited guardian to be appointed for his or her minor child and the
minority of the child, as defined by RCW 11.92.010, is the sole basis of the
petition. The order appointing the guardian ad litem shall recite the duties
set forth in subsection (5) of this section. The appointment of a guardian ad
litem shall have no effect on the legal competency of the alleged incapacitated
person and shall not overcome the presumption of competency or full legal and
civil rights of the alleged incapacitated person.
(4)(a)
The superior court of each county shall develop and maintain a registry of
persons who are willing and qualified to serve as guardians ad litem in
guardianship matters. The court shall choose as guardian ad litem a person
whose name appears on the registry in a system of consistent rotation, except
in extraordinary circumstances such as the need for particular expertise. The
court shall develop procedures for periodic review of the persons on the
registry and for probation, suspension, or removal of persons on the registry
for failure to perform properly their duties as guardian ad litem. In the
event the court does not select the person next on the list, it shall include
in the order of appointment a written reason for its decision.
(b)
To be eligible for the registry a person shall:
(i)
Present a written statement outlining his or her background and
qualifications. The background statement shall include, but is not limited to,
the following information:
(A)
Level of formal education;
(B)
Training related to the guardian ad litem's duties;
(C)
Number of years' experience as a guardian ad litem;
(D)
Number of appointments as a guardian ad litem and the county or counties of
appointment;
(E)
Criminal history, as defined in RCW 9.94A.030; and
(F)
Evidence of the person's knowledge, training, and experience in each of the
following: Needs of impaired elderly people, physical disabilities, mental
illness, developmental disabilities, and other areas relevant to the needs of
incapacitated persons, legal procedure, and the requirements of chapters 11.88
and 11.92 RCW.
The
written statement of qualifications shall include ((a statement of the
number of times the guardian ad litem has been removed for failure to perform
his or her duties as guardian ad litem)) the names of any counties in
which the person was removed from a guardian ad litem registry pursuant to a
grievance action, and the name of the court and the cause number of any case in
which the court has removed the person for cause; and
(ii)
Complete the ((model)) training ((program)) as described in (((d)))
(e) of this subsection. The training is not applicable to guardians
ad litem appointed pursuant to special proceeding Rule 98.16W.
(c)
Superior court shall remove any person from the guardian ad litem registry
who misrepresents his or her qualifications pursuant to a grievance procedure
established by the court.
(d)
The background and qualification information shall be updated annually.
(((d)))
(e) The department of social and health services shall convene an
advisory group to develop a model guardian ad litem training program and shall
update the program biennially. The advisory group shall consist of
representatives from consumer, advocacy, and professional groups knowledgeable
in developmental disabilities, neurological impairment, physical disabilities,
mental illness, domestic violence, aging, legal, court administration,
the Washington state bar association, and other interested parties.
(((e)))
(f) The superior court shall require utilization of the model program
developed by the advisory group as described in (((d))) (e) of
this subsection, to assure that candidates applying for registration as a
qualified guardian ad litem shall have satisfactorily completed training to
attain these essential minimum qualifications to act as guardian ad litem.
(5)
The guardian ad litem appointed pursuant to this section shall have the
following duties:
(a)
To meet and consult with the alleged incapacitated person as soon as
practicable following appointment and explain, in language which such person
can reasonably be expected to understand, the substance of the petition, the
nature of the resultant proceedings, the person's right to contest the
petition, the identification of the proposed guardian or limited guardian, the
right to a jury trial on the issue of his or her alleged incapacity, the right
to independent legal counsel as provided by RCW 11.88.045, and the right to be
present in court at the hearing on the petition;
(b)
To obtain a written report according to RCW 11.88.045; and such other written
or oral reports from other qualified professionals as are necessary to permit
the guardian ad litem to complete the report required by this section;
(c)
To meet with the person whose appointment is sought as guardian or limited
guardian and ascertain:
(i)
The proposed guardian's knowledge of the duties, requirements, and limitations
of a guardian; and
(ii)
The steps the proposed guardian intends to take or has taken to identify and meet
the needs of the alleged incapacitated person;
(d)
To consult as necessary to complete the investigation and report required by
this section with those known relatives, friends, or other persons the guardian
ad litem determines have had a significant, continuing interest in the welfare
of the alleged incapacitated person;
(e)
To investigate alternate arrangements made, or which might be created, by or on
behalf of the alleged incapacitated person, such as revocable or irrevocable
trusts, ((or)) durable powers of attorney, or blocked accounts;
whether good cause exists for any such arrangements to be discontinued; and why
such arrangements should not be continued or created in lieu of a guardianship;
(f)
To provide the court with a written report which shall include the following:
(i)
A description of the nature, cause, and degree of incapacity, and the basis
upon which this judgment was made;
(ii)
A description of the needs of the incapacitated person for care and treatment,
the probable residential requirements of the alleged incapacitated person and
the basis upon which these findings were made;
(iii)
An evaluation of the appropriateness of the guardian or limited guardian whose
appointment is sought and a description of the steps the proposed guardian has
taken or intends to take to identify and meet current and emerging needs of the
incapacitated person;
(iv)
A description of any alternative arrangements previously made by the alleged
incapacitated person or which could be made, and whether and to what extent
such alternatives should be used in lieu of a guardianship, and if the guardian
ad litem is recommending discontinuation of any such arrangements, specific
findings as to why such arrangements are contrary to the best interest of the
alleged incapacitated person;
(v)
A description of the abilities of the alleged incapacitated person and a
recommendation as to whether a guardian or limited guardian should be
appointed. If appointment of a limited guardian is recommended, the guardian
ad litem shall recommend the specific areas of authority the limited guardian
should have and the limitations and disabilities to be placed on the
incapacitated person;
(vi)
An evaluation of the person's mental ability to rationally exercise the right
to vote and the basis upon which the evaluation is made;
(vii)
Any expression of approval or disapproval made by the alleged incapacitated
person concerning the proposed guardian or limited guardian or guardianship or
limited guardianship;
(viii)
Identification of persons with significant interest in the welfare of the
alleged incapacitated person who should be advised of their right to request
special notice of proceedings pursuant to RCW 11.92.150; and
(ix)
Unless independent counsel has appeared for the alleged incapacitated person, an
explanation of how the alleged incapacitated person responded to the advice of
the right to jury trial, to independent counsel and to be present at the
hearing on the petition.
Within
forty-five days after notice of commencement of the guardianship proceeding has
been served upon the guardian ad litem, and at least fifteen days before the
hearing on the petition, unless an extension or reduction of time has been
granted by the court for good cause, the guardian ad litem shall file its
report and send a copy to the alleged incapacitated person and his or her
counsel, spouse, all children not residing with a notified person, those
persons described in (f)(viii) of this subsection, and persons who have filed a
request for special notice pursuant to RCW 11.92.150. If the guardian ad litem
needs additional time to finalize his or her report, then the guardian ad litem
shall petition the court for a postponement of the hearing or, with the consent
of all other parties, an extension or reduction of time for filing the report.
If the hearing does not occur within sixty days of filing the petition, then
upon the two-month anniversary of filing the petition and on or before the same
day of each following month until the hearing, the guardian ad litem shall file
interim reports summarizing his or her activities on the proceeding during that
time period as well as fees and costs incurred;
(g)
To advise the court of the need for appointment of counsel for the alleged
incapacitated person within five court days after the meeting described in (a)
of this subsection unless (i) counsel has appeared, (ii) the alleged
incapacitated person affirmatively communicated a wish not to be represented by
counsel after being advised of the right to representation and of the conditions
under which court-provided counsel may be available, or (iii) the alleged
incapacitated person was unable to communicate at all on the subject, and the
guardian ad litem is satisfied that the alleged incapacitated person does not
affirmatively desire to be represented by counsel.
(6)
If the petition is brought by an interested person or entity requesting the
appointment of some other qualified person or entity and a prospective guardian
or limited guardian cannot be found, the court shall order the guardian ad
litem to investigate the availability of a possible guardian or limited
guardian and to include the findings in a report to the court pursuant to
subsection (5)(f) of this section.
(7)
The parties to the proceeding may file responses to the guardian ad litem
report with the court and deliver such responses to the other parties and the
guardian ad litem at any time up to the second day prior to the hearing. If a
guardian ad litem fails to file his or her report in a timely manner, the
hearing shall be continued to give the court and the parties at least fifteen
days before the hearing to review the report. At any time during the
proceeding upon motion of any party or on the court's own motion, the court may
remove the guardian ad litem for failure to perform his or her duties as
specified in this chapter, provided that the guardian ad litem shall have five
days' notice of any motion to remove before the court enters such order. In
addition, the court in its discretion may reduce a guardian ad litem's fee for
failure to carry out his or her duties.
(8)
The court appointed guardian ad litem shall have the authority, in the event
that the alleged incapacitated person is in need of emergency life-saving
medical services, and is unable to consent to such medical services due to
incapacity pending the hearing on the petition to give consent for such
emergency life-saving medical services on behalf of the alleged incapacitated
person.
(9)
The court-appointed guardian ad litem shall have the authority to move for
temporary relief under chapter 7.40 RCW to protect the alleged incapacitated
person from abuse, neglect, abandonment, or exploitation, as those terms are
defined in RCW 74.34.020, or to address any other emergency needs of the
alleged incapacitated person. Any alternative arrangement executed before
filing the petition for guardianship shall remain effective unless the court
grants the relief requested under chapter 7.40 RCW, or unless, following notice
and a hearing at which all parties directly affected by the arrangement are
present, the court finds that the alternative arrangement should not remain
effective.
(10)
The guardian ad litem shall receive a fee determined by the court. The fee
shall be charged to the alleged incapacitated person unless the court finds
that such payment would result in substantial hardship upon such person, in
which case the county shall be responsible for such costs: PROVIDED, That ((if
no guardian or limited guardian is appointed)) the court may charge such
fee to the petitioner ((or)), the alleged incapacitated person,
or ((divide)) any person who has appeared in the action; or may
allocate the fee, as it deems just((; and)). If the petition
is found to be frivolous or not brought in good faith, the guardian ad litem
fee shall be charged to the petitioner. The court shall not be required to
provide for the payment of a fee to any salaried employee of a public agency.
(11)
Upon the presentation of the guardian ad litem report and the entry of an order
either dismissing the petition for appointment of guardian or limited guardian
or appointing a guardian or limited guardian, the guardian ad litem shall be
dismissed and shall have no further duties or obligations unless otherwise
ordered by the court. If the court orders the guardian ad litem to perform
further duties or obligations, they shall not be performed at county expense.
(12)
The guardian ad litem shall appear in person at all hearings on the petition
unless all parties provide a written waiver of the requirement to appear.
(13)
At any hearing the court may consider whether any person who makes decisions
regarding the alleged incapacitated person or estate has breached a statutory
or fiduciary duty.
Sec.
2. RCW
13.34.100 and 1996 c 249 s 13 are each amended to read as follows:
(1)
The court shall appoint a guardian ad litem for a child who is the subject of
an action under this chapter, unless a court for good cause finds the
appointment unnecessary. The requirement of a guardian ad litem may be deemed
satisfied if the child is represented by independent counsel in the
proceedings.
(2)
If the court does not have available to it a guardian ad litem program with a
sufficient number of volunteers, the court may appoint a suitable person to act
as guardian ad litem for the child under this chapter. Another party to the
proceeding or the party's employee or representative shall not be so appointed.
(3)
Each guardian ad litem program shall maintain a background information record
for each guardian ad litem in the program. The background file shall include,
but is not limited to, the following information:
(a)
Level of formal education;
(b)
Training related to the guardian's duties;
(c)
Number of years' experience as a guardian ad litem;
(d)
Number of appointments as a guardian ad litem and the county or counties of
appointment; ((and))
(e)
The names of any counties in which the person was removed from a guardian ad
litem registry pursuant to a grievance action, and the name of the court and
the cause number of any case in which the court has removed the person for
cause; and
(f)
Criminal history, as defined in RCW 9.94A.030.
The
background information report shall be updated annually. As a condition of
appointment, the guardian ad litem's background information record shall be
made available to the court. If the appointed guardian ad litem is not a
member of a guardian ad litem program the person shall provide the background
information to the court.
Upon
appointment, the guardian ad litem, or guardian ad litem program, shall provide
the parties or their attorneys with a statement containing: His or her
training relating to the duties as a guardian ad litem; the name of any
counties in which the person was removed from a guardian ad litem registry
pursuant to a grievance action, and the name of the court and the cause number
of any case in which the court has removed the person for cause; and his
or her criminal history as defined in RCW 9.94A.030 for the period covering
ten years prior to the appointment. The background statement shall not include
identifying information that may be used to harm a guardian ad litem, such as
home addresses and home telephone numbers, and for volunteer guardians ad litem
the court may allow the use of maiden names or pseudonyms as necessary for
their safety.
(4)
The appointment of the guardian ad litem shall remain in effect until the court
discharges the appointment or no longer has jurisdiction, whichever comes
first. The guardian ad litem may also be discharged upon entry of an order of
guardianship.
(5)
A guardian ad litem through counsel, or as otherwise authorized by the court,
shall have the right to present evidence, examine and cross-examine witnesses,
and to be present at all hearings. A guardian ad litem shall receive copies of
all pleadings and other documents filed or submitted to the court, and notice
of all hearings according to court rules. The guardian ad litem shall receive
all notice contemplated for a parent or other party in all proceedings under
this chapter.
(6)
If the child requests legal counsel and is age twelve or older, or if the
guardian ad litem or the court determines that the child needs to be
independently represented by counsel, the court may appoint an attorney to
represent the child's position.
(7)
For the purposes of child abuse prevention and treatment act (42 U.S.C. Secs.
5101 et seq.) grants to this state under P.L. 93-247, or any related state or
federal legislation, a person appointed pursuant to RCW 13.34.100 shall be
deemed a guardian ad litem to represent the best interests of the minor in
proceedings before the court.
(8)
When a court-appointed special advocate or volunteer guardian ad litem is
requested on a case, the program shall give the court the name of the person it
recommends and the appointment shall be effective immediately. The court shall
appoint the person recommended by the program. If a party in a case reasonably
believes the court-appointed special advocate or volunteer is inappropriate or
unqualified, the party may request a review of the appointment by the program.
The program must complete the review within five judicial days and remove any
appointee for good cause. If the party seeking the review is not satisfied
with the outcome of the review, the party may file a motion with the court for
the removal of the court-appointed special advocate on the grounds the advocate
or volunteer is inappropriate or unqualified.
Sec.
3. RCW
13.34.102 and 1997 c 41 s 6 are each amended to read as follows:
(1)
All guardians ad litem((, who have not previously served or been trained as a
guardian ad litem in this state, who are appointed after January 1, 1998,))
must ((complete the curriculum developed by the office of the administrator
for the courts)) comply with the training requirements established
under RCW 2.56.030(15), prior to their appointment in cases under Title 13 RCW,
except that volunteer guardians ad litem or court-appointed special advocates
((accepted into a volunteer program after January 1, 1998,)) may ((complete
an)) comply with alternative ((curriculum)) training requirements
approved by the office of the administrator for the courts that meet((s))
or exceed((s)) the state-wide ((curriculum)) requirements.
(2)(a)
Each guardian ad litem program for compensated guardians ad litem shall
establish a rotational registry system for the appointment of guardians ad
litem. If a judicial district does not have a program the court shall
establish the rotational registry system. Guardians ad litem shall be selected
from the registry except in exceptional circumstances as determined and
documented by the court. The parties may make a joint recommendation for the
appointment of a guardian ad litem from the registry.
(b)
In judicial districts with a population over one hundred thousand, a list of
three names shall be selected from the registry and given to the parties along
with the background information as specified in RCW 13.34.100(3), including
their hourly rate for services. Each party may, within three judicial days,
strike one name from the list. If more than one name remains on the list, the
court shall make the appointment from the names on the list. In the event all
three names are stricken the person whose name appears next on the registry
shall be appointed.
(c)
If a party reasonably believes that the appointed guardian ad litem lacks the
necessary expertise for the proceeding, charges an hourly rate higher than what
is reasonable for the particular proceeding, or has a conflict of interest, the
party may, within three judicial days from the appointment, move for substitution
of the appointed guardian ad litem by filing a motion with the court.
(d)
The superior court shall remove any person from the guardian ad litem registry
who misrepresents his or her qualifications pursuant to a grievance procedure
established by the court.
(3)
The rotational registry system shall not apply to court-appointed special
advocate programs.
Sec.
4. RCW
13.34.105 and 1999 c 390 s 2 are each amended to read as follows:
(1)
Unless otherwise directed by the court, the duties of the guardian ad litem
include but are not limited to the following:
(a)
To ((represent)) investigate, collect relevant information about the
child's situation, and ((be an advocate for)) report to the court
factual information regarding the best interests of the child;
(b)
((To collect relevant information about the child's situation;
(c))) 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
(d))) (c)
To report to the court information on the legal status of a child's membership
in any Indian tribe or band;
(d)
Court-appointed special advocates and guardians ad litem may make
recommendations based upon an independent investigation regarding the best
interests of the child, which the court may consider and weigh in conjunction
with the recommendations of all of the parties; and
(e)
To represent and be an advocate for the best interests of the child.
(2)
((The)) A guardian ad litem shall be deemed an officer of the
court for the purpose of immunity from civil liability.
(3)
Except for information or records specified in RCW 13.50.100(5), the guardian
ad litem shall have access to all information available to the state or agency
on the case. Upon presentation of the order of appointment by the guardian ad
litem, any agency, hospital, school organization, division or department of the
state, doctor, nurse, or other health care provider, psychologist,
psychiatrist, police department, or mental health clinic shall permit the
guardian ad litem to inspect and copy any records relating to the child or
children involved in the case, without the consent of the parent or guardian of
the child, or of the child if the child is under the age of thirteen years,
unless such access is otherwise specifically prohibited by law.
(4)
A guardian ad litem may release confidential information, records, and reports
to the office of the family and children's ombudsman for the purposes of carrying
out its duties under chapter 43.06A RCW.
(5)
The guardian ad litem shall release case information in accordance with the
provisions of RCW 13.50.100.
Sec.
5. RCW
13.34.120 and 1998 c 328 s 4 are each amended to read as follows:
(1)
To aid the court in its decision on disposition, a social study, consisting of
a written evaluation of matters relevant to the disposition of the case, shall
be made by the person or agency filing the petition. A parent may submit a
counselor's or health care provider's evaluation of the parent, which shall
either be included in the social study or considered in conjunction with the
social study. The study shall include all social records and may also include
facts relating to the child's cultural heritage, and shall be made available to
the court. The court shall consider the social file, social study, guardian ad
litem report, the court-appointed special advocate's report, if any, and any
reports filed by a party at the disposition hearing in addition to evidence
produced at the fact-finding hearing. At least ten working days before the
disposition hearing, the department shall mail to the parent and his or her
attorney a copy of the agency's social study and proposed service plan, which
shall be in writing or in a form understandable to the parents or custodians.
In addition, the department shall provide an opportunity for parents to review
and comment on the plan at the community service office. If the parents
disagree with the agency's plan or any part thereof, the parents shall submit
to the court at least twenty-four hours before the hearing, in writing, or
signed oral statement, an alternative plan to correct the problems which led to
the finding of dependency. This section shall not interfere with the right of
the parents or custodians to submit oral arguments regarding the disposition
plan at the hearing.
(2)
In addition to the requirements set forth in subsection (1) of this section, a
predisposition study to the court in cases of dependency alleged pursuant to
RCW 13.34.030(4) (b) or (c) shall contain the following information:
(a)
A statement of the specific harm or harms to the child that intervention is
designed to alleviate;
(b)
A description of the specific programs, for both the parents and child, that
are needed in order to prevent serious harm to the child; the reasons why such
programs are likely to be useful; the availability of any proposed services;
and the agency's overall plan for ensuring that the services will be
delivered. The description shall identify services chosen and approved by the
parent;
(c)
If removal is recommended, a full description of the reasons why the child
cannot be protected adequately in the home, including a description of any
previous efforts to work with the parents and the child in the home; the
in-home treatment programs which have been considered and rejected; the
preventive services that have been offered or provided and have failed to
prevent the need for out-of-home placement, unless the health, safety, and
welfare of the child cannot be protected adequately in the home; and the
parents' attitude toward placement of the child;
(d)
A statement of the likely harms the child will suffer as a result of removal.
This section should include an exploration of the nature of the parent-child
attachment and the meaning of separation and loss to both the parents and the
child;
(e)
A description of the steps that will be taken to minimize harm to the child
that may result if separation occurs; and
(f)
Behavior that will be expected before determination that supervision of the
family or placement is no longer necessary.
(3)(a)
The guardian ad litem or court-appointed special advocate shall file his or her
report with the court and with the parties pursuant to court rule prior to a
hearing for which a report is required. The report shall include a written
list of persons interviewed and reports or documentation considered. If the
report makes particular recommendations, the report shall include specific
information on which the guardian ad litem or court-appointed special advocate
relied in making each particular recommendation.
(b) The parties to the proceeding may file written responses to
the guardian ad litem's or court-appointed special advocate's report with the
court and deliver such responses to the other parties at a reasonable time or
pursuant to court rule before the hearing. The court shall consider any
written responses to the guardian ad litem's or court-appointed special advocate's
report, including any factual information or recommendations provided in the
report.
Sec.
6. RCW
26.12.175 and 1996 c 249 s 15 are each amended to read as follows:
(1)(a)
The court may appoint a guardian ad litem to represent the interests of a minor
or dependent child when the court believes the appointment of a guardian ad
litem is necessary to protect the best interests of the child in any proceeding
under this chapter. The family court services professionals may also make a
recommendation to the court regarding whether a guardian ad litem should be
appointed for the child. The court may appoint a guardian ad litem from the
court-appointed special advocate program, if that program exists in the county.
(b)
Unless otherwise ordered, the guardian ad litem's role is to investigate and
report factual information to the court concerning parenting
arrangements for the child, and to represent the child's best interests. Guardians
ad litem and investigators under this title may make recommendations based upon
an independent investigation regarding the best interests of the child, which
the court may consider and weigh in conjunction with the recommendations of all
of the parties. If a child expresses a preference regarding the parenting
plan, the guardian ad litem shall report the preferences to the court, together
with the facts relative to whether any preferences are being expressed
voluntarily and the degree of the child's understanding. The court may
require the guardian ad litem to provide periodic reports to the parties
regarding the status of his or her investigation. The guardian ad litem shall
file his or her report at least sixty days prior to trial.
(c)
The parties to the proceeding may file with the court written responses to
any report filed by the guardian ad litem or investigator. The court shall
consider any written responses to a report filed by the guardian ad litem or
investigator, including any factual information or recommendations provided in
the report.
(d)
The court shall enter an order for costs, fees, and disbursements to cover the
costs of the guardian ad litem. The court may order either or both parents to
pay for the costs of the guardian ad litem, according to their ability to pay.
If both parents are indigent, the county shall bear the cost of the guardian,
subject to appropriation for guardians' ad litem services by the county legislative
authority. Guardians ad litem who are not volunteers shall provide the parties
with an itemized accounting of their time and billing for services each month.
(2)(a)
If the guardian ad litem appointed is from the county court-appointed special
advocate program, the program shall supervise any guardian ad litem assigned to
the case. The court-appointed special advocate program shall be entitled to
notice of all proceedings in the case.
(b)
The legislative authority of each county may authorize creation of a
court-appointed special advocate program. The county legislative authority may
adopt rules of eligibility for court-appointed special advocate program
services.
(3)
Each guardian ad litem program shall maintain a background information record
for each guardian ad litem in the program. The background file shall include,
but is not limited to, the following information:
(a)
Level of formal education;
(b)
Training related to the guardian's duties;
(c)
Number of years' experience as a guardian ad litem;
(d)
Number of appointments as a guardian ad litem and county or counties of
appointment; ((and))
(e)
The names of any counties in which the person was removed from a guardian ad
litem registry pursuant to a grievance action, and the name of the court and
the cause number of any case in which the court has removed the person for
cause; and
(f)
Criminal history, as defined in RCW 9.94A.030.
The
background information report shall be updated annually. As a condition of
appointment, the guardian ad litem's background information record shall be
made available to the court. If the appointed guardian ad litem is not a
member of a guardian ad litem program the person shall provide the background
information to the court.
Upon
appointment, the guardian ad litem, or guardian ad litem program, shall provide
the parties or their attorneys with a statement containing: His or her
training relating to the duties as a guardian ad litem; the name of any
counties in which the person was removed from a guardian ad litem registry
pursuant to a grievance action, and the name of the court and the cause number
of any case in which the court has removed the person for cause; and his
or her criminal history as defined in RCW 9.94A.030 for the period covering
ten years prior to the appointment. The background statement shall not include
identifying information that may be used to harm a guardian ad litem, such as
home addresses and home telephone numbers, and for volunteer guardians ad litem
the court may allow the use of maiden names or pseudonyms as necessary for
their safety.
(4)
When a court-appointed special advocate or volunteer guardian ad litem is
requested on a case, the program shall give the court the name of the person it
recommends and the appointment shall be effective immediately. The court shall
appoint the person recommended by the program. If a party in a case reasonably
believes the court-appointed special advocate or volunteer is inappropriate or
unqualified, the party may request a review of the appointment by the program.
The program must complete the review within five judicial days and remove any
appointee for good cause. If the party seeking the review is not satisfied
with the outcome of the review, the party may file a motion with the court for
the removal of the court-appointed special advocate on the grounds the advocate
or volunteer is inappropriate or unqualified.
Sec.
7. RCW
26.12.177 and 1997 c 41 s 7 are each amended to read as follows:
(1)
All guardians ad litem((, who have not previously served or been trained as
a guardian ad litem in this state, who are appointed after January 1, 1998,))
and investigators appointed under this title must ((complete the
curriculum developed by the office of the administrator for the courts)) comply
with the training requirements established under RCW 2.56.030(15), prior to
their appointment in cases under Title 26 RCW, except that volunteer
guardians ad litem or court-appointed special advocates ((accepted into a
volunteer program after January 1, 1998,)) may ((complete an)) comply
with alternative ((curriculum)) training requirements
approved by the office of the administrator for the courts that meet((s))
or exceed((s)) the state-wide ((curriculum)) requirements.
(2)(a)
Each guardian ad litem program for compensated guardians ad litem shall
establish a rotational registry system for the appointment of guardians ad
litem and investigators under this title. If a judicial district does
not have a program the court shall establish the rotational registry system.
Guardians ad litem and investigators under this title shall be selected
from the registry except in exceptional circumstances as determined and
documented by the court. The parties may make a joint recommendation for the
appointment of a guardian ad litem from the registry.
(b)
In judicial districts with a population over one hundred thousand, a list of
three names shall be selected from the registry and given to the parties along
with the background information as specified in RCW 26.12.175(3), including
their hourly rate for services. Each party may, within three judicial days,
strike one name from the list. If more than one name remains on the list, the
court shall make the appointment from the names on the list. In the event all
three names are stricken the person whose name appears next on the registry
shall be appointed.
(c)
If a party reasonably believes that the appointed guardian ad litem lacks the
necessary expertise for the proceeding, charges an hourly rate higher than what
is reasonable for the particular proceeding, or has a conflict of interest, the
party may, within three judicial days from the appointment, move for
substitution of the appointed guardian ad litem by filing a motion with the
court.
(d)
Under this section, within either registry referred to in (a) of this
subsection, a subregistry may be created that consists of guardians ad litem
under contract with the department of social and health services' division of
child support. Guardians ad litem on such a subregistry shall be selected and
appointed in state-initiated paternity cases only.
(e)
The superior court shall remove any person from the guardian ad litem registry
who misrepresents his or her qualifications pursuant to a grievance procedure
established by the court.
(3)
The rotational registry system shall not apply to court-appointed special advocate
programs.
NEW
SECTION. Sec. 8. A
new section is added to chapter 26.12 RCW to read as follows:
All
information, records, and reports obtained or created by a guardian ad litem,
court-appointed special advocate, or investigator under this title shall be
discoverable pursuant to statute and court rule. The guardian ad litem,
court-appointed special advocate, or investigator shall not release private or
confidential information to any nonparty except pursuant to a court order
signed by a judge. The guardian ad litem, court-appointed special advocate, or
investigator may share private or confidential information with experts or
staff he or she has retained as necessary to perform the duties of guardian ad
litem, court-appointed special advocate, or investigator. Any expert or staff
retained are subject to the confidentiality rules governing the guardian ad
litem, court-appointed special advocate, or investigator. Nothing in this
section shall be interpreted to authorize disclosure of guardian ad litem
records in personal injury actions.
Sec.
9. RCW
26.12.185 and 1999 c 390 s 4 are each amended to read as follows:
A
guardian ad litem, court-appointed special advocate, or investigator under
this title appointed under this chapter may release confidential
information, records, and reports to the office of the family and children's
ombudsman for the purposes of carrying out its duties under chapter 43.06A RCW.
NEW
SECTION. Sec. 10. A
new section is added to chapter 11.88 RCW to read as follows:
A
guardian ad litem shall not engage in ex parte communications with any judicial
officer involved in the matter for which he or she is appointed during the
pendency of the proceeding, except as permitted by court rule or statute for ex
parte motions. Ex parte motions shall be heard in open court on the record.
The record may be preserved in a manner deemed appropriate by the county where
the matter is heard. The court, upon its own motion, or upon the motion of a
party, may consider the removal of any guardian ad litem who violates this
section from any pending case or from any court-authorized registry, and if so
removed may require forfeiture of any fees for professional services on the
pending case.
NEW
SECTION. Sec. 11. A
new section is added to chapter 13.34 RCW to read as follows:
A
guardian ad litem or court-appointed special advocate shall not engage in ex
parte communications with any judicial officer involved in the matter for which
he or she is appointed during the pendency of the proceeding, except as
permitted by court rule or statute for ex parte motions. Ex parte motions
shall be heard in open court on the record. The record may be preserved in a
manner deemed appropriate by the county where the matter is heard. The court,
upon its own motion, or upon the motion of a party, may consider the removal of
any guardian ad litem or court-appointed special advocate who violates this
section from any pending case or from any court-authorized registry, and if so
removed may require forfeiture of any fees for professional services on the
pending case.
NEW
SECTION. Sec. 12. A
new section is added to chapter 26.12 RCW to read as follows:
A
guardian ad litem, court-appointed special advocate, or investigator shall not
engage in ex parte communications with any judicial officer involved in the
matter for which he or she is appointed during the pendency of the proceeding,
except as permitted by court rule or statute for ex parte motions. Ex parte
motions shall be heard in open court on the record. The record may be
preserved in a manner deemed appropriate by the county where the matter is
heard. The court, upon its own motion, or upon the motion of a party, may
consider the removal of any guardian ad litem, court-appointed special
advocate, or investigator who violates this section from any pending case or
from any court-authorized registry, and if so removed may require forfeiture of
any fees for professional services on the pending case.
NEW
SECTION. Sec. 13. A
new section is added to chapter 11.88 RCW to read as follows:
The
court shall specify the hourly rate the guardian ad litem may charge for his or
her services, and shall specify the maximum amount the guardian ad litem may
charge without additional court review and approval. The court shall specify
rates and fees in the order of appointment or at the earliest date the court is
able to determine the appropriate rates and fees and prior to the guardian ad
litem billing for his or her services. This section shall apply except as
provided by local court rule.
NEW
SECTION. Sec. 14. A
new section is added to chapter 13.34 RCW to read as follows:
The
court shall specify the hourly rate the guardian ad litem may charge for his or
her services, and shall specify the maximum amount the guardian ad litem may
charge without additional court review and approval. The court shall specify
rates and fees in the order of appointment or at the earliest date the court is
able to determine the appropriate rates and fees and prior to the guardian ad
litem billing for his or her services. This section shall apply except as
provided by local court rule.
NEW
SECTION. Sec. 15. A
new section is added to chapter 26.12 RCW to read as follows:
Except
for guardians ad litem appointed by the court from the subregistry created
under RCW 26.12.177(2)(d), the court shall specify the hourly rate the guardian
ad litem or investigator under this title may charge for his or her services,
and shall specify the maximum amount the guardian ad litem or investigator
under this title may charge without additional court review and approval. The
court shall specify rates and fees in the order of appointment or at the
earliest date the court is able to determine the appropriate rates and fees and
prior to the guardian ad litem billing for his or her services. This section
shall apply except as provided by local court rule.
NEW
SECTION. Sec. 16. Each
superior court shall adopt rules establishing and governing procedures for
filing, investigating, and adjudicating grievances made by or against guardians
ad litem under Titles 11, 13, and 26 RCW.
