Attorneys should be appointed for court appointed special advocates (CASA’s) and guardian ad litems (GAL’s) to ensure that the CASA/GAL’s are as effective as possible in representing the best interests of the child in juvenile court. While representation of a CASA/GAL by an attorney is discretionary (IC 31-32-3-4), it ensures that the voice of the CASA/GAL is adequately and completely represented before the juvenile court.
When necessary, the court may appoint an attorney if necessary to protect the child’s interests, and clearly there are expenses tied to the decision to appoint an attorney. IC 31-32-3-5. Nonetheless, there is a real danger of the CASA/GAL depending on the Indiana Department of Child Services (DCS) attorney or others to assist with the legal aspects of the case if there is no attorney appointed. Too often, the CASA/GAL is seen by the parents as merely an extension of DCS, rather than an independent officer of the court. The presence of attorneys for all participants sends a signal that the CASA/GAL is independent. It also enables the CASA/GAL to do more motions practice and be more effective when questioning witnesses during the various hearings. Overall, it makes the CASA/GAL more effective in making and preserving a record of what is in the child’s best interests.
CASA/GAL’s may be appointed in both CHINS (IC 31-33-15-1) and juvenile delinquency cases (IC 31-32-3-1), although appointment in juvenile delinquency cases is more rare. A CASA/GAL must be appointed in a termination of parental rights case, if the parent objects to the termination. IC 31-35-2-7(a).
One further comment, IC 31-32-3-3 allows that “the attorney representing the child may be appointed the child’s guardian ad litem or court appointed special advocate.” In this blogger’s opinion, this statute should be repealed as it places the attorney in a difficult ethical quandary. When representing the child, the attorney should be bound by the express interest model of representation in which the attorney should be the voice of the child’s wishes. When acting as the CASA/GAL, the attorney is required to “represent and protect the best interests of the child.” IC 31-32-3-6. Clearly, there are many cases when what the child wants may not be in the child’s best interests. The attorney should never be placed in a position to argue multiple positions depending on whether speaking before the court in the same case as the child’s attorney or the CASA/GAL.