The North Carolina Guardian ad Litem Program – What Is It, and What Does It Do?

By Michelle FormyDuval Lynch

The Juvenile Justice and Children’s Rights Section of the NCBA includes attorneys and child advocates who are committed to excellence in the direct representation of North Carolina youth. Three of the most common areas of direct representation of children and juveniles in court are child welfare, juvenile delinquency, and family law proceedings. Attorneys with the North Carolina Guardian ad Litem Program (NC GAL Program) represent children in child welfare proceedings in North Carolina district and appellate courts. This article is a short summary of the NC GAL Program, its purpose, duties, and role in that representation.

Guardian vs. Guardian ad Litem vs. NC GAL Program

A guardian of the person is one who generally has the duties of care, control, and custody of their ward. The term “guardian ad litem” comes from the latin phrase “ad litem” which means “for the purposes of the suit.” A guardian ad litem is usually an individual appointed to appear in a lawsuit on behalf of a minor party or incompetent person. While guardians ad litem may be appointed in a variety of civil and criminal proceedings in North Carolina,[1] the NC GAL Program is only appointed to represent children in abuse, neglect, or dependency (“AND”) proceedings, or termination of parental rights (TPR) proceedings under Subchapter I of the NC Juvenile Code. These cases are initiated when a county department of social services files a juvenile petition; they are sometimes referred to as “DSS court,” but a more accurate name is “child welfare court.”

Establishment and Overview of the NC GAL Program

The NC GAL Program is a division of the N.C. Administrative Office of the Courts, and was established in 1983.[2] It followed the enactment of the federal Child Abuse Prevention and Treatment Act (CAPTA) of 1974. Under CAPTA, any states receiving federal funds for the prevention of child abuse and neglect must provide a trained guardian ad litem[3] for each child in an abuse or neglect proceeding.

Currently, the NC GAL Program has an executive administrator, state office staff, four regional administrators, and local staff and volunteer guardian ad litem advocates in every judicial district in North Carolina. The administrator, regional administrators, and state office staff (including administrative, legal, training and recruitment teams) provide guidance, oversight, and training for local staff. During the last fiscal year, the program represented over 17,000 children in North Carolina child welfare courts.

Appointment of and Representation by the NC GAL Program

The court is required to appoint the NC GAL Program for a child after a juvenile petition is filed in all abuse and neglect proceedings, and may appoint the program in dependency proceedings. The court must also appoint the NC GAL Program in TPR cases when the parent has denied an allegation in the TPR Petition. The NC GAL Program is not appointed and does not represent children in any other court proceedings, such as juvenile delinquency, divorce, or private child custody cases.

The appointment of the NC GAL Program includes the appointment of a trained, volunteer guardian ad litem advocate for the child (“GAL”) and an attorney advocate for the child. The GAL and attorney advocate are supported by NC GAL Program staff. The N.C. Supreme Court, in In re J.H.K., 365 N.C. 171, 711 S.E.2d 118 (2011) recognized and clarified representation by the NC GAL Program under the Juvenile Code.

Child Welfare Adjudication and Dispositional Hearings

In order to understand what the NC GAL Program does, it helps to have an understanding of the two phases of child welfare proceedings. In AND cases, the court first conducts an adjudication hearing to determine if the child is abused, neglected, or dependent. In a TPR, the adjudication hearing is to determine if there are grounds to terminate parental rights. If the court determines the child is not abused, or dependent, or there are not grounds for TPR, the case is dismissed. If the court finds that the child is adjudicated abused, neglected, or dependent, or grounds exist for termination of parental rights, a dispositional hearing is then held.

The purpose of the dispositional hearing is to determine placement and custody of the child and an appropriate plan in the child’s best interests.

After an initial AND disposition, the court holds review or permanency planning hearings, where it is required to formulate a plan to best meet the needs of the child. If the child has been removed from their parents’ custody, reunification of the child with their parent or parents is prioritized and must initially be part of the permanent plan (unless there are aggravating circumstances). Parents may work towards reunification, usually in a case plan formulated by the court. The purpose of a case plan is for the parents to remedy and correct the conditions which led to their child being adjudicated abused, neglected, or dependent, and removed from their custody.

Review and permanency planning hearings continue until permanence for the child is achieved. During this phase, the court determines and reviews the needs of the child and the family and the best way to meet those needs. The court’s guiding principle in the dispositional phase is the child’s best interests, which is the paramount consideration or the “polar star” of the Juvenile Code.

In a disposition after a TPR adjudication, the court determines if termination of parental rights is in the best interests of the child. Parental rights are only terminated if there are grounds for termination and the court determines it is in the child’s best interests.

Duties of the NC GAL Program

The duties of the NC GAL Program in AND and TPR proceedings include:

(1)  conducting an investigation to determine the facts, the needs of the juvenile, and the available resources within the family and community to meet those needs;

(2) facilitating, when appropriate, the settlement of disputed issues;

(3) offering evidence and examining witnesses at adjudication;

(4) exploring options with the court at the dispositional hearing;

(5) conducting follow-up investigations to insure that the orders of the court are being properly executed;

(6) reporting to the court when the needs of the juvenile are not being met; and

(7) protecting and promoting the best interests of the juvenile until formally relieved of the responsibility by the court.

In performing their duties, the individual GALs often interview parents and other family members, read social worker reports, talk with the child’s school teacher, doctor, or other treatment provider, research what resources the family might be able to provide the child, accompany the child to court hearings, and visit the child in their placement. The GAL then compiles a written report to the court. The GAL court report is submitted at disposition, review, permanency planning, TPR, Post-TPR, and Youth Transition to Adulthood proceedings. The court report covers the history of the case, investigation, current information about the child and the parents, the wishes of the child (if they are old enough to express their wishes), and recommendations. The court report must be shared with all the parties. The GAL often appears as a witness at the hearing.

The NC GAL Program attorney advocate ensures the legal rights of the child are protected, and represents the child in both adjudicatory and disposition hearings. The attorney advocate represents the child as any other client –  presenting evidence, calling and questioning witnesses, making closing arguments, etc. If the child is old enough to express their wishes as to placement, custody, visitation, adoption, etc., they may testify, or the attorney advocate may inform the court of their wishes.

Requirements for NC GAL Program GALs and Attorney Advocates

Unlike some states that employ non-lawyer individuals to advocate for children in court, the NC GAL Program relies on its 5000+ volunteer GALs to be independent, unbiased voices for the child they are appointed to represent. In order to be a GAL, you must be at least 18 years old, have no felony convictions or pending felony charges, no convictions or pending charges of sex offenses, not be on a Sex Offender Registry or Responsible Individual’s List, and have no substantiated abuse or neglect reports.  They must be committed to children and their best interests, willing to devote the time necessary for the position, and respectful of children, families, service providers and the court. If an applicant passes volunteer screening, including a personal interview, they are required to complete a 30-hour training course; thereafter they take an oath and are sworn in by a judge. A GAL must complete ongoing in-service training as long as they serve. Volunteers receive supervision and guidance from NC GAL Program staff.

NC GAL Program attorney advocates must have an N.C. law license and preferably have experience in child welfare or family law. Each judicial district has NC GAL Program staff attorneys or contract attorneys, and, sometimes, both. The state office has a legal team of five attorneys who help formulate policy, track legislation, provide training and support for district offices, and represent child clients in appeals from district court to the N.C. Court of Appeals and N.C. Supreme Court. Child clients are also represented in appeals by attorneys who volunteer for the NC GAL Program as part of its pro bono appellate program. The program provides free training (including CLEs) for all of its trial and appellate attorneys, whether paid or pro bono.

Be a GAL or Pro Bono Attorney for the NC GAL Program

April is National Child Abuse Prevention, National Volunteer Appreciation, and N.C. Child Advocate Month. During April of each year, the NC GAL Program works to educate the public as to how to help prevent child abuse and recognizes and spotlights the work of its 5,000+ GAL volunteers.

The NC GAL Program recruits volunteers continually; many districts do not have enough volunteer GALs to meet the demand. The NC GAL Program pro bono appellate program always welcomes attorneys who are interested in or practice appellate litigation and/or child welfare law. For more information about the program, you can go to the Guardian ad Litem page on the North Carolina Judicial Branch website.  If you would like to volunteer as a GAL or pro bono attorney, you can sign up on the Guardian ad Litem website, or contact the author.