Juvenile Law
GAL Rule 48 Changes
By Misty Connors Esq. Connors Law Office, LLC mistyconnors@att.net | 937.607.4060 By Serah Seimann Esq. Siemann & Associates Co., LPA ssiemann@siemannlaw.com 937.496.1450
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veryone on the Guardian ad Litem (“GAL”) court appointment list at Montgomery County Juvenile Court (“MCJC”) received a letter from court administrator Eric Shafer on December 29, 2020 highlighting the changes to Ohio Supreme Court Rules of Superintendence Rule 48 (“Rule 48”) effective January 1, 2021. The juvenile law sub-committee for GAL’s outlined the below best practices we hope will help you revise your processes and update your GAL report drafting templates.
Responsibilities of the GAL
The responsibilities of the GAL are mostly unchanged by the revisions to Rule 48. Generally speaking, “[t]he role of guardian ad litem is to investigate the ward’s situation and then to ask the court to do what the guardian feels is in the ward’s best interest.” In re Baby Girl Baxter, (1985) 17 Ohio St.3d 229, 232, 479 N.E.2d 257. GAL statutory duties include without limitation the duty to “perform whatever functions are necessary to protect the best interest of the child, including, but not limited to, investigation, mediation, monitoring court proceedings, and monitoring the services provided the child by the public children services agency or private child placing agency that has temporary or permanent custody of the child, and shall file any motions and other court papers that are in the best interest of the child in accordance with rules adopted by the supreme court.” R.C. 2151.281. Changes to Rule 48 affecting the GAL’s duties are outlined below. You may find it helpful to review the red-lined version of Rule 48 posted to the Ohio Supreme Court’s website.
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Dayton Bar Briefs February 2021
Child’s Wishes
Rule 48 now requires GALs to ascertain the wishes and concerns of the child. And “[u]pon becoming aware that the recommendations of the guardian ad litem differ from the wishes of the child, immediately notify the court in writing with notice to the parties or affected agencies.” Sup. R. 48.03(A)(5). Note the rules have no filing requirements associated with this notice, thus, a brief email with all counsel copied should suffice to accomplish the goal of notifying the court that the child’s wishes differ from the GAL’s recommendation. The court may decide the child’s wishes are effectively represented by counsel for a parent or appoint an attorney for the child. See R.C. 2151.352 and Juv.R.4(A). Note the rule says “immediately” notify the court. Hearings are scheduled under significant statutory time constraints and are not easily rescheduled.
Limited Scope Appointments
Be sure to carefully read the GAL appointment order because the court may file a “Limited Scope Appointment” to investigate a specific issue and relieving your duties inapplicable to the specific issues. Sup. R. 48.02(B). These “limited scope” appointments may limit
the GAL’s scope to include investigating the child’s educational history, family dynamics, medical treatment, mental health treatment, or other specific issue the court determines a need for GAL services exists.
Dual Appointments
As noted above, when a conflict exists between what the child wants and what the GAL recommends, the GAL must notify the court. In cases where one person is appointed as both attorney and GAL and the child’s wishes differ from the GAL’s recommendation, the court will appoint a new GAL and a new attorney. The original dual appointee will no longer work on the case. Dual appointments are no longer required when a complaint alleges a child is abused since revisions to Juv. R. 4 became effective July 1, 2020. MCJC no longer automatically issues orders for dual appointments of GAL/ Attorney in all abuse cases. If you are currently serving in a dual appointment, you may want to consider seeking leave to withdraw as counsel to avoid disruption of GAL services in the event a conflict arises. continued on page 23
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