Legislators debate the fate of the guardians ad litem

first_img March 1, 2002 Jan Pudlow Associate Editor Regular News Legislators debate the fate of the guardians ad litem Associate EditorWhere, oh where, is the Guardian Ad Litem program going to end up?The dedicated folks who provide representation for children in court, using a network of volunteers, feel tossed around the legislature like a hot potato.Create a new bureaucracy and call it the Office of Public Advocacy was the original suggestion flowing from an interim project of the Senate Judiciary Committee.No, that would be too expensive in these lean budget times, many senators warned.Instead, let the public defenders be in charge of the representation of children in dependency court, since they already handle delinquency cases and have an elected official in each of Florida’s 20 circuits.OK, sounds good — was the consensus of the Senate Judiciary Committee, chaired by Sen. Locke Burt, R-Ormond Beach, after getting the nod of agreement from Sixth Circuit Public Defender Bob Dillinger, legislative chair of the Florida Public Defenders Association, as long as funding came with it.Upon further reflection, the public defenders came back a week later to say: No way. We don’t want it. That would be rife with conflicts.So in the latest incarnation of SB 686, that passed out of the Senate Children and Families Committee chaired by Sen. Durell Peaden, R-Crestview, on February 13, the GAL program would move from the judiciary to the executive branch and be placed under the Office of Public Guardianship at the Department of Elder Affairs.To use her words, that idea left Rep. Cindy Lerner, D-Miami, a former staff attorney for the 11th Circuit Guardian Ad Litem Program, “very distressed.”“The only thing those two programs have in common is the word ‘guardian,’” fumed Lerner. She is sponsoring HB 629 that would give the job of overseeing the budget of the GAL to the Justice Administrative Commission, that now provides that function for public defenders and state attorneys.“They have nothing in common. It takes us back 20 years in child representation. It has never been a part of the guardianship program to even look at children’s representation issues. They don’t know what the issues are. They don’t know the program. They have no contact. They deal with the Department of Elder Affairs. We deal with the Department of Children and Families. They deal with probate court. We deal with juvenile and dependency court.”Burt explained the rationale: “The Guardianship office exists now and they are the folks who are willing to take over this program.”The reason for moving both GAL and Office of Public Guardianship to the executive branch, Burt said, is: “One of the concerns I had about putting it under the JAC is there was no Cabinet-level person who is going to be an advocate for these folks. I’ve been concerned, in general, about things that are created and float out there with no clearly identified mission and who’s in charge.”The most recent action the Senate Children and Families Committee took on the bill also included an amendment by Sen. Burt Saunders, R-Naples, that calls for an interim study to see if moving the GAL to the Office of Public Guardianship was the right decision after all.“We’ll see how it works in practice and see if we need to tweak it more,” Burt explained.But Lerner touts a recently released study by the Office of Program Policy Analysis and Government Accountability (OPPAGA) that recommends the GAL be housed with JAC because it could operate independently and efficiently.She said moving the GAL and studying the decision for another year would only foist the program, that operates with no statewide director, into greater uncertainty.“I would rather see everything killed, and when we can get some common sense and understanding of what the issues are, move it forward next year,” Lerner said.Just a week earlier, she said her concern of doing nothing this year to move the GAL could “put it up potentially on the chopping block. That’s why I’m compelled to be as modest and practical as possible, and get it from the courts.”Currently, the GAL program’s home is at Office of State Courts Administrator, but that needs to change for two reasons: The court has not defined the GAL program as an “essential court activity,” and that’s significant because of the approaching change in how the state trial courts system will be funded in 2004, due to Revision 7 of Article V.Secondly, it is a viewed as a conflict of interest to have the chief judge of each circuit managing GAL staff and operations while also sitting as the judge in the very hearings the GAL appear as representatives of children.“When the guardian ad litem staff disagrees with a judge’s decision, and requests a rehearing or appeal, staff is publicly disagreeing with program management, placing all parties in conflict,” according to the February OPPAGA report.Lerner said her bill is focused on the “very pragmatic need to move the GAL program lock, stock, and barrel out from under the trial court position it’s been in with OSCA.”Find the program a new administrative home and then let it flourish and work on expanding the representation for kids is her philosophy, with a price tag between $300,000 to $400,000.But the Senate version not only gives the GAL a new home, it expands representation to providing more guardians to children in dependency court, more attorneys to assist a network of volunteer lay guardians, and attorneys for the child in certain difficult cases, at the judge’s discretion. The price tag is about $11-$12 million. Currently, according to the Senate Judiciary’s interim project study, only 36 percent of children embroiled in abuse and neglect cases are afforded the service of a guardian ad litem, and most have no representation at all. Even when a judge appoints the GAL, a guardian is appointed little more than half the time in dependency cases.Despite the pitfalls of the various options, many children’s advocates say the encouraging news is that the legislature is addressing the woeful lack of consistent, independent, and competent representation of children languishing in foster care for too long.“We do very much want to make sure something does happen,” said Dillinger, representing the public defenders.But once the Senate staff made it clear to him there could be no attorney-client privilege in dependency court, where guardians are duty-bound to advocate the “best interest of the child,” Dillinger had to call a time out and rethink what he had agreed to.“We cannot possibly stand there with the same child with an attorney-client relationship in delinquency and no attorney-client relationship in dependency,” Dillinger explained.“It can’t be done. They want us to represent the GAL. I want to represent the child. The child is the client.”That change-of-heart with the public defenders is OK with Margaret McGauley, executive director of the Florida Network of GAL Directors, who said it created an image problem.“What I have heard from directors around the state is that volunteers see the public defender’s office representing the very people who offend these children. We would lose. We would have a very large problem recruiting volunteers if they knew they were working in the public defender’s office,” she said.The main thing, McGauley said, is to find a home where the GAL program can operate independently, or there will be conflicts.“I do believe that the Justice Administrative Commission is the best place,” she said.Already, the uncertain future for the GAL has hurt programs, she said, including being moved out of the courthouse in the Third Circuit, staff directors leaving to seek more job security in other positions within the courts, and waning recruitment of volunteers who don’t want to give their time to a program in flux.As Debbie Kinsey, director of the Third Circuit GAL, said: “It’s more harmful to the program as a whole to be in limbo than to move us, as long as it’s to the right place.” Legislators debate the fate of the guardians ad litemlast_img