A. A guardian ad litem shall zealously represent the child's best interests in the proceeding for which the guardian ad litem has been appointed and in any subsequent appeals.
B. Unless excused by a court, a guardian ad litem appointed to represent a child's best interests shall continue the representation in any subsequent appeals.
C. Any party may petition the court for an order to remove a guardian ad litem on the grounds that the guardian ad litem has a conflict of interest or is unwilling or unable to zealously represent the child's best interests.
D. After consultation with the child, a guardian ad litem shall convey the child's declared position to the court at every hearing.
E. Unless a child's circumstances render the following duties and responsibilities unreasonable, a guardian ad litem shall:
(1) meet with and interview the child prior to custody hearings, adjudicatory hearings, dispositional hearings, judicial reviews and any other hearings scheduled in accordance with the provisions of the Children's Code;
(2) communicate with health care, mental health care and other professionals involved with the child's case;
(3) review medical and psychological reports relating to the child and the respondents;
(4) contact the child prior to any proposed change in the child's placement;
(5) contact the child after changes in the child's placement;
(6) attend local substitute care review board hearings concerning the child and if unable to attend the hearings, forward to the board a letter setting forth the child's status during the period since the last local substitute care review board review and include an assessment of the department's permanency and treatment plans;
(7) report to the court on the child's adjustment to placement, the department's and respondent's compliance with prior court orders and treatment plans and the child's degree of participation during visitations; and
(8) represent and protect the cultural needs of the child.
F. A guardian ad litem may retain separate counsel to represent the child in a tort action on a contingency fee basis or any other cause of action in proceedings that are outside the jurisdiction of the children's court. When a guardian ad litem retains separate counsel to represent the child, the guardian ad litem shall provide the court with written notice within ten days of retaining the separate counsel. A guardian ad litem shall not retain or subsequently obtain any pecuniary interest in an action filed on behalf of the child outside of the jurisdiction of the children's court.
G. In the event of a change of venue, the originating guardian ad litem shall remain on the case until a new guardian ad litem is appointed by the court in the new venue and the new guardian ad litem has communicated with and received all pertinent information from the former guardian ad litem.
H. A guardian ad litem shall receive notices, pleadings or other documents required to be provided to or served upon a party. A guardian ad litem may file motions and other pleadings and take other actions consistent with the guardian ad litem's powers and duties.
I. A guardian ad litem shall not serve concurrently as both the child's delinquency attorney and guardian ad litem.
History: 1978 Comp., § 32A-1-7, enacted by Laws 1993, ch. 77, § 16; 1995, ch. 206, § 4; 2005, ch. 189, § 3.
ANNOTATIONSThe 2005 amendment, effective June 17, 2005, provided in Subsection A that a guardian ad litem shall represent a child in a proceeding for which the guardian has been appointed and in subsequent appeals; provided in Subsection B that unless excused by a court, a guardian ad litem shall continue the representation in subsequent appeals; provided in Subsection D that a guardian ad litem shall convey the child's declared position to the court at every hearing; provided in Subsection E that unless a child's circumstances render the prescribed duties and responsibilities unreasonable, the guardian ad litem shall perform the prescribed duties and responsibilities in Subsection E; added Subsection H to provide that a guardian ad litem shall receive documents required to be provided or served on a party and may file motions and pleadings and take actions consistent with the guardian's powers and duties; and added Subsection I to provide that a guardian ad litem shall not serve concurrently as a child's delinquency attorney and guardian ad litem.
The 1995 amendment, effective July 1, 1995, added "with respect to matters arising pursuant to the provisions of the Children's Code" in Subsection A; added Subsections C and F and redesignated the remaining subsections accordingly; in Subsection E, inserted "or any other cause of action" following "fee basis" and added the last sentence; and made minor stylistic changes throughout the section.
Guardian ad litem's dual role. — A guardian ad litem has the dual role of representing the child's best interests, while also presenting the child's position to the court when reasonable and appropriate, even if the child's position conflicts with what the guardian ad litem thinks should be done. State ex rel. Children, Youth & Families Dep't v. Esperanza M., 1998-NMCA-039, 124 N.M. 735, 955 P.2d 204; State ex rel. Children, Youth & Families Dep't (In re Candice Y.), 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35.
Attorney's dual relationship with child as guardian ad litem during abuse and neglect proceedings, and then as her defense attorney during delinquency proceedings has potential to become actual, active conflict of interest, and requires, when acting as defense attorney, that counsel adopt child's viewpoint and zealously represent child's wishes, whether or not counsel necessarily agrees that those wishes represent child's best interests State v. Joanna V., 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783.
Ex parte conduct rule inapplicable to guardians ad litem. — Rule 16-402 NMRA of the rules of professional conduct does not prohibit guardians ad litem from communicating ex parte with department of children, youth and families social workers; although attorneys, guardians ad litem do not have typical attorney-client relationships with children, and are therefore not bound by that rule. State ex rel. Children, Youth & Families Dep't v. George F., 1998-NMCA-119, 125 N.M. 597, 964 P.2d 158, cert. denied, 125 N.M. 654, 964 P.2d 818.