Search



Not a CBA Member? Join Now!
Find A Lawyer Directory
STRATUM
Find A Lawyer Directory

TCL > November 1997 Issue > Chief Justice Directives

The Colorado Lawyer
November 1997
Vol. 26, No. 11 [Page  133]

© 1997 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.

From the Courts
Court Business

Chief Justice Directives

Supreme Court of Colorado
Office of the Chief Justice

Directive Concerning Court Appointment of Guardians Ad Litem and
Other Representatives and Of Counsel for Children and Indigent Persons in Titles 14, 15, 19
(Dependency and Neglect Only), 22 and 27

The following policy is adopted effective August 1, 1997, to assist the administration of justice through (1) the appointment and training of guardians ad litem, special advocates or other representatives appointed on behalf of child(ren), wards, or impaired adults in all cases and (2) the appointment of counsel for children and adults under Titles 14, 15, 19 (dependency and neglect only), 22, and 27. This policy does not cover appointments made pursuant to Titles 16 and 18 or appointments of counsel in juvenile delinquency matters pursuant to Title 19. Appointment of counsel in juvenile delinquency matters is addressed in Chief Justice Directive 97-01.

I. Statutory Authority

A. The federal and state constitutions and various Colorado statutes provide authority for the appointment of guardians ad litem, child representatives and counsel, and counsel for adults for indigent persons in certain civil actions.

B. State funds are appropriated to the Judicial Branch to provide for representation in dependency and neglect cases and in certain other cases in which the party represented, or the party's parent or legal guardian, is determined to be indigent.

II. Determination of Indigency

A. A person must be indigent to qualify for court-appointed representation at state expense pursuant to Titles 14, 15, 22, and 27 and for representation of respondents in a dependency and neglect action under Title 19. Such person(s) must also be indigent for the court to authorize payment of certain costs and expenses. The parent or legal guardian of a child in a dependency and neglect action under Title 19 need not be indigent for the appointment of a guardian ad litem for the child.

B. An indigent person is one whose financial circumstances fall within the fiscal standards set forth in Attachment A.

C. All persons requesting court-appointed representation to be paid by the state on the basis of indigency must complete, or have completed on their behalf, application form JDF 208 ("Application for Court-Appointed Counsel or Guardian ad Litem") signed under oath, before an appointment of counsel at state expense may be considered by the court. Form JDF 208 must be completed for the appointment of a guardian ad litem at state expense in all cases except dependency and neglect cases under Title 19.

D. If, in the best interests of justice, a tentative appointment of legal counsel or a guardian ad litem for the party is necessary, such appointment may be made pending a final decision regarding indigency. If a review of a person's application shows that the person is not indigent and the person is not qualified to have court-appointed representation at state expense, the court may order the person to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel or a guardian ad litem.

III. Appointment of Guardians ad Litem, Special Advocates, and Other Representatives

A. A guardian ad litem must be appointed for a child in a dependency and neglect action pursuant to Title 19, regardless of a determination of indigency.

B. A guardian ad litem may be appointed in the child's best interest for a child in a truancy action pursuant to Title 22, a juvenile delinquency action pursuant to Title 19, or for a juvenile charged as an adult in a criminal case, pursuant to Title 19.

C. An attorney representative or special advocate may be appointed in the child's best interest for a child in a domestic relations case pursuant to Title 14. The court shall enter an order for costs, fees, and disbursements against any or all of the parties.

D. A guardian ad litem may be appointed for a parent or guardian in dependency and neglect proceedings who has been determined to be mentally ill or developmentally disabled, unless a conservator has been appointed, pursuant to Title 19.

E. In formal proceedings involving trusts or estates of decedents, minors, protected persons, and in judicially supervised settlements pursuant to Title 15, a guardian ad litem or court visitor may be appointed to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation exists.

F. A guardian ad litem must be appointed for any child under age 15 who is a ward of the Department of Human Services, or for any minor who objects to hospitalization, in a mental health proceeding pursuant to Title 27.

G. A guardian ad litem may be appointed for an infant or incompetent person who does not have a representative and who is a party to a civil suit.

H. A guardian ad litem may be appointed for a child in a paternity action pursuant to Title 19.

IV. Appointment of Counsel for a Juvenile

A. Counsel may be appointed in the child's best interest at state expense for a child in a truancy action pursuant to Title 22 or for any matter under Title 19 if the court deems representation by counsel necessary to protect the interests of the child or other parties. Form JDF 208 must be completed by the parent or legal guardian to determine whether the parent or legal guardian shall reimburse the state for the appointment. The appointment shall be at state expense if the parent(s) or guardian(s) is(are) indigent or if a determination of indigency cannot be made.

V. Reimbursement to the State for Court-Appointed Representation

A. For all appointments described, the court shall review the person's or, in the case of children, the parent's(s') or guardian's(s') indigency status at the time of appointment and, if feasible, at the time of case closure. If the court determines, at any time after appointment of counsel, guardian ad litem, or other representative, that the person or, in the case of children, the person's parent(s) or guardian(s), has the ability to pay all or part of the costs for representation or other costs, the court shall enter a written order that the person reimburse all or part of those costs to the registry of the court for transmittal to the state general fund. The order of reimbursement may be reduced to judgment and collected by the state.

B. Collections of fees for court-appointed representation may be referred to the Collections Investigator or to the Central Collections Service in the State Division of Central Services. Costs for representation provided to indigent persons may be assessed at the fixed hourly rate for court-appointed counsel for the number of hours reported by counsel to the court. Other costs may be assessed, including costs for transcripts, witness fees, and costs for service of process.

VI. Guidelines for Appointment of Counsel, Guardians ad Litem, or Other Representatives

A. The court shall maintain a list of qualified contract attorneys from which to make appointments of counsel and guardians ad litem.

B. Any attorney not under contract with the Department who requests appointments must submit to the chief judge a request with an affidavit of qualifications for such appointments. The judge, in his or her discretion, may approve additions to the list at any time. An attorney must submit an updated affidavit every three years to ensure that he or she is maintaining his or her qualifications for such appointments.

C. The judge or magistrate shall consider the number of an attorney's active cases, the qualifications of the attorney as provided, and the needs of the party requesting representation when making appointments.

D. The court may also appoint a qualified person other than an attorney as a special advocate, court visitor, or guardian ad litem when the appointment of an attorney is not mandated by statute. The court shall also maintain a list of qualified persons to accept appointments as special advocates, court visitors, investigators, or other representatives from which the judge will make appointments.

E. All appointments shall be made pursuant to a written Order of the Court. The order shall specify the:

1. authority under which the appointment is made;

2. reason(s) for the appointment;

3. scope of the duties to be performed; and

4. terms and method of compensation.

Sample Orders of Appointment are attached as Attachments B and C.

F. The appointing judge or magistrate shall monitor the actions of the appointee to ensure compliance with the duties and scope specified in the order of appointment.

VII. Guidelines for Payment by the Department

A. Attorney fees and expenses will be reimbursed either (1) on a monthly basis at the set rate per case established by the Colorado Judicial Department for appointments made under contract, (2) on a case-by-case basis for itemized payment orders detailing the attorney's time spent and expenses for appointments not covered by contracts with the Department, or (3) in accordance with the procedures established by the Department under other contract agreements.

B. Court costs for all state-paid appointments shall be billed to the appointing court and, if approved, paid by the appointing court. Court costs include such items as: witness fees, witness expenses, service of process, out-of-state investigative travel, interpreters, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives, and other policies and procedures of the Judicial Department, including Fiscal Procedure, Chapter 22 ("Procedure for Processing Court Cost Bills").

C. The Department contracts with individual attorneys for court-appointed representation on a state-fiscal-year basis (July 1 through June 30) at rates established annually by the Department. Claims for payment by counsel and guardians ad litem for appointments made under contract shall be made in compliance with the procedures specified in the contract. Claims for payment not covered by contracts with the Department shall follow the procedures described at Attachment D.

D. For appointments that are not made under a contractual agreement, the following maximum hourly rates for reimbursement by the Department and the maximum total fees that may be paid to court-appointed counsel, investigators, special advocates, or other representatives paid by the Department, are established:

Maximum Hourly Rate  
  In Court/Out of Court
Court-appointed Counsel $50.00/40.00 per hour
Guardian ad Litem $50.00/40.00 per hour
Special Advocate or Other Representative $20 per hour
Paralegal, Legal Assistant, or Law Clerk $20 per hour
Court-authorized Investigator $25 per hour
Court Visitor $25 per hour
Maximum Total Fee Per Appointment  
Title 19--Dependency and Neglect Matters
Respondent Parent Counsel $1,500.00
Guardian ad Litem (attorney) $1,500.00
Special Advocate or Other Representative $ 750.00
   
Title 19--Other Matters (i.e., Delinquency GAL,
Support, Adoption, Paternity)
Respondent Parent Counsel $ 750.00
Guardian ad Litem (attorney) $ 750.00
Special Advocate or Other Representative $ 375.00
   
Titles 14 and 15
Respondent Parent Counsel $ 750.00
Attorney Representative or Guardian ad Litem $ 750.00
Guardian ad Litem (non-attorney) $ 375.00
Special Advocate or Other Representative $ 375.00
   
Titles 22 and 27
Guardian ad Litem (attorney) $ 200.00
Guardian ad Litem (non-attorney) $ 100.00
Counsel $ 200.00

E. Under no circumstances shall the fees exceed the maximums outlined without a detailed written motion and a detailed written order showing the specific special circumstances that justify fees in excess of the maximum. If the attorney chooses to use the support of a paralegal, legal assistant, investigator, or law clerk, the fees of the support person shall be added to the fees of the attorney. The combined fees of the attorney or non-attorney representative and other support staff shall not exceed the total maximum outlined.

F. To maintain effective representation by court-appointed counsel and to provide basic fairness to attorneys and others so appointed, the State Court Administrator is directed to review the fee schedule for court-appointed counsel every three years, commencing in the year 2000, and to submit a report to the Colorado Supreme Court on or before October 1 of that year, and every third year thereafter, with recommended adjustments to the fee schedule.

VIII. Appeals

A. The trial court shall determine the need and statutory requirement for appointment of private counsel on appeal. Where applicable, determinations of indigency should be made in accordance with the procedure described in section II.

B. Orders for payment shall be filed on Form JDF 207 (Colorado Judicial Department Order For Payment Of Fees) with the appellate court and must contain a copy of the order appointing private counsel to represent the indigent person on appeal. An appellate court judge, or designee, shall carefully review all orders for payment submitted to the court for approval.

C. The maximum total fee allowable on an appeal shall be in accordance with the maximum rates outlined in VII.D.

[Sections IX, X, XI, and XII apply only to attorneys, special advocates, and other representatives appointed on behalf of children, wards, or impaired adults, and do not apply to appointment of legal counsel.]

IX. Training of Guardians ad Litem and Other Representatives Appointed on Behalf of Children, Wards, or Impaired Adults

A. Attorneys appointed as guardians ad litem shall possess the knowledge, expertise, and training necessary to perform the court appointment, and shall be subject to all of the rules and standards of the legal profession.

B. In addition, the attorney guardians ad litem shall obtain 10 hours of continuing legal education, or other courses relevant to an appointment that enhance the attorney's knowledge of the issues in representation, per legal education reporting period. The court shall require that proof of such education, expertise, or experience be on file with the court at the time of appointment.

C. In those cases in which a non-attorney is appointed as a special advocate, representative, or guardian ad litem, the non-attorney shall also demonstrate the knowledge, expertise, and training necessary to fulfill the terms of the appointment. The court may determine whether the individual's knowledge, expertise, and training are adequate for an appointment, and may require the individual to demonstrate his or her qualifications.

X. Duties of Guardians ad Litem and Other Representatives Appointed on Behalf of Children, Wards, or Impaired Adults

A. The individual appointed shall diligently take steps that he or she deems necessary to protect the interest of the person for whom he or she was appointed, under the terms and conditions of the order of appointment, including any specific duties set forth in that or any subsequent order. If the appointee finds it necessary and in the best interests of the child(ren), ward, or impaired adult, the appointee may request that the court expand the terms of the appointment and scope of the duties.

B. The appointee shall specifically:

1. Attend all court hearings and provide accurate and current information directly to the court (although another qualified attorney may substitute for some hearings, this should be the exception);

2. File written report(s) with the court and all other parties;

3. Conduct an independent investigation in a timely manner, which shall include, at a minimum:

a) Personally meeting with and observing the child, ward, or impaired adult at home or in placement;

b) Personally interviewing the child (if age-appropriate), ward, or impaired adult;

c) Reviewing court files and relevant records, reports, and documents;

d) Interviewing, with the consent of counsel, respondent parents;

e) Interviewing other people involved in the child's, ward's, or impaired adult's life; and

f) When appropriate, visiting the home from which the child, ward, or impaired adult was removed.

Duties (e) and (f) may be performed, under the supervision of the appointee, by a qualified person other than the appointee.

4. In cases in which the parents, child, ward, or impaired adult is living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person are waived unless extraordinary circumstances warrant the expenditure of state funds required for such visits. However, the appointee shall endeavor to meet the person if and when that person is within 100 miles of the jurisdiction of the court.

5. Continue to perform all duties listed above as necessary to represent the best interest of the child, ward, or impaired adult for the duration of the case unless relieved of such duty by the court.

6. All attorney guardians ad litem appointed shall submit a standard compliance report to the presiding juvenile or probate judge or, absent a presiding juvenile or probate judge, the chief judge. Reports shall be submitted in each district in which guardians ad litem are appointed. Copies of the reports shall be submitted to the Office of the State Court Administrator by the attorney. The standard compliance report form shall be developed by the Office of the State Court Administrator and made available to all guardians ad litem by the court.

XI. Duties of Judges and Magistrates

A. Judges and magistrates shall ensure that guardians ad litem or other representatives involved with cases under their jurisdiction are representing the best interests of children, wards, or impaired adults and performing the duties specified in this order.

B. In providing this oversight, judges and magistrates shall:

1. Routinely monitor compliance with this directive;

2. Encourage local bar associations to develop and implement mentor programs which will enable prospective guardians ad litem to learn these areas of the law;

3. Encourage local bar associations to establish guardian ad litem oversight committees;

4. Meet with guardians ad litem, special advocates, or other representatives at the first appointment to provide guidance and clarify the expectations of the court; and

5. Hold periodic meetings with all practicing guardians ad litem or other representatives as the court deems necessary to ensure adequate representation of children, wards, or impaired adults.

XII. Complaints

A. All complaints regarding the performance of any guardian ad litem or other representative shall be submitted to the presiding juvenile or probate judge or, if appropriate, chief judge of the district. Upon request by the presiding juvenile or probate judge or chief judge, the State Court Administrator will conduct a review of the guardian ad litem or other representative which may include interviews with pertinent parties, court observation, review of attorney records, and court file reviews.

B. Copies of complaints regarding contract guardians ad litem shall be forwarded by the presiding juvenile or probate judge or chief judge to the Office of the State Court Administrator. Upon request by the presiding juvenile or probate judge or chief judge, the State Court Administrator will conduct a review as described above.

XIII. Sanctions

A. All contracts with the Colorado Judicial Department for guardians ad litem shall include a provision to ensure compliance with this Chief Justice Directive. Failure to comply with this Directive may result in termination of the contract.

B. Judicial officers shall notify guardians ad litem who are appointed on an hourly basis that acceptance of the appointment requires compliance with this Directive. Failure to comply with this Directive may result in termination of the current appointment and removal from the appointment list.

Chief Justice Directives 89-02, 89-03 and CJD 96-02 are repealed and this CJD 97-02 is adopted, effective August 1, 1997.

Date: __________________________

Anthony F. Vollack, Chief Justice

© 1997 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=1997.


Back