Being a GAL in Tribal Court NAILS Pre-NLADA Indian Law Training Paul Stenzel – Stenzel Law Office LLC November 6, 2007

OVERVIEW Brief history Role of a GAL Plan of Action Nuts & Bolts GAL Report Ethics Issues Special Considerations

Brief History Historically parents were assumed to always act in the best interest of their children. Scientific evidence in early 1960s that abuse of children a threat to their lives. Society began to recognize the child’s interest separately from the parent’s. A willingness developed to intervene in family; U.S. Supreme Court has upheld state interest in protecting the physical and psychological well-being of children.

Brief History In 1974, Congress passed the Child Abuse Prevention and Treatment Act. Required states to appoint GALs for children in order to qualify for certain federal grants.

Role of a GAL More than one model depending on the law of the jurisdiction. –1) Appointed to represent the best interest of the child (or ward). –2) Representing the child. –3) Fulfilling specific statutory duties. Find out the if there is a definition in your jurisdiction.

Role of a GAL Listening, speaking and writing skills; Knowledge and appreciation of ethnic, cultural, and socio-economic aspects of community; Be able to relate to a child, family members, and professionals in a careful and confident manner; Exercise sound judgment and good common sense

Role of GAL Treat all individuals with dignity and respect while carryout out duties Be knowledgeable about and appreciate the child’s religious background and heritage Be sensitive to the issues of cultural and socio-economic diversity

GAL Duties (from National Court Appointed Special Advocate Association) Conduct an independent investigation Determine the interests of the child Seek cooperative solutions Provide written reports when appropriate Appear at all hearings to represent the child’s interests

GAL Duties (cont’d) Explain the Court proceedings and the role of the GAL in terms the child can understand Make recommendations for specific appropriate services for the child and the child’s family Monitor implementation of service plans and court orders Inform the Court promptly of important developments. Advocate for the child’s interest in the community.

Plan of Action Once appointed: Review the file Schedule appointments with key players (notify attorneys) and interview Meet with children Consult sources (doctors, teachers, service providers, witnesses, etc.) Cultural component Develop report Appear in court as needed

Nuts and Bolts Appointment from Court Releases from necessary parties Court order for access Identify resources Identify limitations Big picture

Nuts & Bolts DO NOT: Provide direct services Provide counseling or therapy to child or parent Foster a “big brother/sister” relationship with the child or parent Give legal advice or hire attorney for child or parent

Nuts and Bolts DON’TS (cont’d) Supervise visits between child and parties Provide transportation except as ordered by the Court Provide child care services for the child Make placement arrangements or remove a child from the home Facilitate communication between parents regarding the case.

Nuts & Bolts Doing any of the items listed compromises your independence as a GAL

Nuts and Bolts Special Considerations for TPR: Is TPR accepted/permitted under tribal law? What is the proposed placement? Why is TPR being sought? Consistent with tribal culture? What are the implications for the child’s membership?

GAL Report Concise recommendation to the Court with key facts and application of best- interest standard to the facts. Remember your limited mandate. Balance between rigorous advocacy and available resources.

Ethics Issues Have your appointment from the Court in hand. The child’s/ward’s wishes may not be the same as your recommendations. –This could be an ethical issue depending on your role within the jurisdiction. Privilege issue if you are representing best interests as opposed to representing the child. Admission to practice in tribal court

Ethics Issues Let parties know communication with parties is NOT privileged Conflict check –No prior representation of parties –No prior significant contact Avoid ex parte communication Must go through attorney for represented parties

Ethics Issues Representing multiple siblings –OK in most cases, but be aware of issues which may require different GAL for siblings: Special needs of one sibling Inter-sibling abuse More than one mother or father –Are the children “similarly situated”?

Special Considerations Every case is different Tribal membership Interviewing children Extended family Other influences Draw on resources

Special Considerations Adult wards Extended family Avoid influence of tribal politics The business end and getting paid

Additional resources (Court Appointed Special Advocates) (American Bar Association)