JUVENILE LAW GAL Rule 48 Changes

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

Everyone 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. 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.

The GAL report must include language explaining who may view the report and potential penalties for unauthorized disclosures. You should cite the exact language from the statute in your GAL report as follows:

“The guardian ad litem report shall be provided to the court, unrepresented parties, and legal counsel. Any other disclosure of the report must be approved in advance by the court. Unauthorized disclosure or distribution of the report may be subject to court action, including the penalties for contempt, which include fine and/or incarceration.”

Ohio Sup. R. 48.06(A)(2).

The court will include the same language in your appointment entry under the new Rule 48. The report “shall affirmatively state that responsibilities have been met” Sup. R. 48.06(A)(1). You could comply by inserting the statement “I have met the GAL responsibilities set forth in Ohio Sup. R. 48.03, the Ohio Revised Code, and by this court as detailed below.”

MCJC previously provided a sample GAL report at Appendix 3 in the Local Rules of Court, which is available online at http://www.mcjcohio. org/wp-content/uploads/2020/11/MCJC-Local-Rules-of-Practice-andProcedure-1.pdf. Please note that the sample report was made part of the local rule before the new Rule 48 changes took place. You may continue using Appendix 3, but with the additional required language added.

E. Relief from Duties

In situations where completing all GAL duties is impossible or impracticable, you are required to inform the court that the duties were not complete and seek relief from the duties. One way to accomplish this is to include the motion for relief from certain duties in your GAL report, along with a detailed explanation of the reasons for non-compliance. Be sure to comply with MCJC Local Rule 11(d) by including the title of your Motion for Relief from Duties in the caption of your GAL Report, if you are seeking relief from any duties. F. Additional Educational Requirements

The preservice course and annual continuing educational requirements have doubled to 12 and 6 hours, respectively. The court has, however, waived in-person requirements for calendar year 2021. https://www. supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-6725.pdf

II. Conclusion

While the new Rule 48 may seem a bit overwhelming, the amendments are meant to better serve court involved youth and provide valuable guidance to GAL’s on making the best possible recommendation to the court. Keep in mind that Rule 48 remains an “administrative directive that creates no individual rights and lacks the force of law.” See e.g. In re T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 36 (2d Dist.)(citing Corey v. Corey, 2d Dist. Greene No. 2013-CA-73, 2014-Ohio-3258, ¶ 9.). MCJC has discretion regarding whether to follow or ignore the GAL recommendation. The attorneys in the Juvenile Law Section are here to engage in open discussion or provide feedback, as necessary. Please feel free to reach out to us with your questions and concerns as you perform your GAL duties.

Note: The Ohio Supreme Court has a red-lined version of the new rule available at http://www.sconet.state.oh.us/RuleAmendments/ documents/Proposed%20Amend.%20to%20Sup%20R%20%2048%20 (GAL%20standards)%20as%20edited%20by%20Court.doc.