CHAPTER 451

FORMERLY

SENATE BILL NO. 415

AN ACT TO AMEND TITLES 10, 13, 29 AND 31 OF THE DELAWARE CODE RELATING TO GUARDIAN AD LITEM REPRESENTATION OF CHILDREN IN CHILD WELFARE PROCEEDINGS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Section 925(17) of Title 10 of the Delaware Code by striking it in its entirety and inserting the following in lieu thereof:

"Appoint attorneys and/or Court Appointed Special Advocates to serve as guardians ad litem to represent the best interests of a child in any child welfare proceeding;"

Section 2. Amend Section 701(a) of Title 13 of the Delaware Code by deleting the word "custodians" in the first sentence and replacing it with the word "guardians".

Section 3. Amend Section 701 of Title 13 of the Delaware Code by adding a subsection (c) to read as follows:

"(c) Any child who is the subject of a custody, visitation, guardianship, termination of parental rights, adoption, or other related proceedings in which the Division of Family Services is a party, should have a guardian ad litem appointed by the Court to represent the best interests of the child. The Court, in its discretion, may also appoint an attorney to represent the child’s wishes. The guardian ad litem shall be an attorney authorized to practice law in the State of Delaware or a Court Appointed Special Advocate. The rights, responsibilities and duties of the attorney serving as guardian ad litem are set forth in section 9007A of Title 29 of the Delaware Code, and the rights, responsibilities and duties of the Court Appointed Special Advocate serving as guardian ad litem are set forth in Chapter 36 of Title 31 of the Delaware Code. When determining whether to appoint an attorney through the Office of the Child Advocate or a Court Appointed Special Advocate through the Family Court, the Family Court judge, in his or her discretion, should assign the most complex and serious cases to the Office of the Child Advocate.”

Section 4. Amend the title of Chapter 90A of Title 29 of the Delaware Code by adding "the" after the word "of" and before the word "child".

Section 5. Amend Section 9001A of Title 29 of the Delaware Code by adding the word "the" after the word "of" and before the word "child" in the first sentence, and deleting the word "contractual" from the third sentence.

Section 6. Amend Section 9002A of Title 29 of the Delaware Code by adding new subsections (4), (6), (8), (11), (12), (14), and (15) and redesignating subsection (4) as subsection (5), resdesignating (5) as subsection (7), redesignating subsection (6) as subsection (9), redesignating subsection (7) as subsection (10), and redesignating subsection (8) as subsection (13), to read as follows:

"(4) 'Best interests' as defined in Section 722 of Title 13 of the Delaware Code;

(6) 'Child welfare proceeding' means any Family Court proceeding and subsequent appeal therefrom involving custody, visitation, guardianship, termination of parental rights, adoption and other related petitions that involve a dependent, neglected or abused child or a child at risk of same as determined by a Family Court judge;

(8) 'Court' means the Family Court;

(11) 'Division' means the Division of Family Services of the Department of Services for Children, Youth and their Families;

(12) 'Guardian ad litem' means an individual appointed by the Court to represent the best interests of a child whether or not that reflects the wishes of the child, who by his or her appointment, shall be a party to the child welfare proceeding. The guardian ad litem is charged with obtaining a clear understanding of the situation and needs of the child, and making recommendations to the Court as to what is in the best interests of the child.

(14) 'Office' means the Office of the Child Advocate.

(15) ‘Permanency’ means the safe, stable, custodial environment in which a child is raised and the life-long relationship that child establishes with a nurturing caregiver."

Section 7. Amend Section 9006A of Title 29 of the Delaware Code by redesignating the existing section as subsection (1) and inserting after the word "confidential" in the first sentence ", including the identity of any person seeking assistance from the Office on behalf of a child."

Section 8. Amend Section 9006A of Title 29 of the Delaware Code by adding a (1) before the word “All” and adding a subsection (2) to read as follows:

"(2) Anyone participating in good faith in seeking assistance from the Office on behalf of a child pursuant to this Chapter shall have immunity from liability, civil or criminal, that might otherwise exist, and such immunity shall extend to participation in any judicial proceeding resulting from such a referral."

Section 9. Amend Section 9007A of Title 29 of the Delaware Code by striking the section in its entirety and inserting the following in lieu thereof:

"(1) Purpose.

(a) The General Assembly has recognized the need to safeguard the welfare of abused, neglected and dependent children in this State. As such, it has charged the Office of the Child Advocate and the Court-Appointed Special Advocate Program with ensuring representation of children's best interests in child welfare proceedings through appointment of guardians ad litem. To this end, the Office shall coordinate with the Family Court and the Court Appointed Special Advocate program to implement and administer a program for guardian ad litem representation of children.

(b) In determining whether to represent an abused, neglected or dependent child, the Office may communicate with any child at issue and may have access to all information relating to that child held or maintained by the Department. If the Office determines that a child needs guardian ad litem representation, the Court shall sign an order appointing the designated attorney as attorney guardian ad litem.

(c) This section shall be liberally construed so that these purposes may be realized.

(2) Appointment of Attorney Guardian ad Litem

(a) In the event that the Family Court Judge determines, pursuant to the conditions set forth in Section 701(c) of Title 13 of the Delaware Code that an attorney guardian ad litem should be appointed, the Family Court Judge shall sign an order appointing the attorney guardian ad litem. That order shall impose on the attorney guardian ad litem all the duties, rights and responsibilities set forth in this section. Upon entry of the order, the attorney guardian ad litem shall have the authority to review all documents and interview all pertinent persons having significant information relating to the child and the child's life circumstances.

(b) The appointment shall last until the attorney guardian ad litem is released from responsibility by order of the Court, or until the attorney guardian ad litem's commitment to the Court ends.

(c) The attorney guardian ad litem shall be a party to any child welfare proceeding in which the child is the subject, and shall possess all the procedural and substantive rights of a party including those set forth in Section 732 of Title 13 of the Delaware Code.

(d) Upon presentation of the order of appointment by the attorney guardian ad litem, any agency, hospital, school, organization, division or department of the State, doctor, nurse or other health care provider, treatment facility, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney guardian ad litem to inspect and copy any records relating to the child and parents involved in the case of appointment without consent of the child or parents.

(3) Duties and Rights

The attorney guardian ad litem shall:

(a) represent the best interests of the child in all child welfare proceedings;

(b) be trained by the Office of the Child Advocate or a course approved by the Office prior to representing any child before the Court. The attorney guardian ad litem shall be required to participate in ongoing training regarding child welfare. The attorney shall be employed, contracted and/or appointed by the Office;

(c) provide independent, factual information to the Court regarding the cases to which he/she is appointed. To that end, the attorney guardian ad litem shall conduct an independent investigation of the circumstances surrounding a case of appointment. This investigation shall include interviews and/or observations of the child and relevant individuals, as well as a review of all relevant records or reports;

(d) submit a written or oral report to the Court for any Court proceeding;

(e) be provided with notice of every Court proceeding and receive copies of every pleading;

(f) participate in all depositions, negotiations, discovery, pretrial conferences, hearings, and appeals;

(g) have access to all records regarding the child and his or her family maintained by the Division;

(h) monitor cases to which they are appointed to assure that the terms of the Court's orders are fulfilled and permanency for the child is achieved;

(i) receive reasonable notice from the Division of changes in placement, school, or any other change of circumstances affecting the child;

(j) receive reasonable notice from the Division of any founded complaint involving: (1) the child, where the child is the alleged victim; (2) the residence in which the child lives; and/or (3) the home-based daycare which the child attends;

(k) request a hearing before the Court when the plan on behalf of the child is not implemented, is not meeting the child's needs or upon completion of a Division investigation;

(l) request any appropriate relief from the Court on behalf of the child;

(m) appear, when appropriate, on behalf of a child before the Violent Crimes Compensation Board, to pursue a claim on behalf of the child, as set forth in Chapter 90 of Title 11 of the Delaware Code; and

(n) ascertain the wishes of the child and make the child's wishes known to the Court. If the attorney guardian ad litem concludes that the child’s wishes differ from the position of the attorney guardian ad litem, he or she will notify the Court of the conflict.

(4) Criminal Investigations and/or Prosecutions.

Notwithstanding any provision of this chapter to the contrary, the Office of the Child Advocate shall in no way intervene in any pending criminal investigation or prosecution, and shall provide no legal representation or advice to any suspect, defendant or respondent in any open criminal investigation or prosecution."

Section 10. Amend Section 9008A of Title 29 of the Delaware Code by adding the phrase "or contracted" in the first sentence after the word "employed" and before the word "by".

Section 11. Amend Section 3601(a) of Title 31 of the Delaware Code by striking it in its entirety and replacing it with the following:

"Children who appear in Family Court as the subject of custody, visitation, guardianship, termination of parental rights, adoption and other related petitions that involve a dependent, neglected or abused child often are situated in the middle of an adversary process. These children have no one to represent their best interests, as opposed to the interests of the petitioner and respondent. Furthermore, when the child has no one specifically to represent what is in his or her best interests, the Family Court may only receive information that supports the position of the petitioner or respondent. Therefore, the purpose of this chapter is to provide for a system to ensure that children who are the subject of these proceedings before the Family Court, have their best interests represented in those proceedings. To this end, the Family Court will establish and administer a Court Appointed Special Advocate Program."

Section 12. Amend Section 3602(1) of Title 31 of the Delaware Code by inserting after "physical injury" the following:

"or a child who has been abused as defined by § 902 of Title 16 of the Delaware Code"

Section 13. Amend Section 3602 of Title 31 of the Delaware Code by adding new subsections (4), (6), (9), (10), and (12); redesignating subsection (4) as subsection (5); redesignating subsection (5) as subsection (7); redesignating subsection (6) as subsection (8) while replacing the phrase “Division of Child Protective Services” with “Division of Family Services”; and redesignating subsection (7) as subsection (11), to read as follows:

"(4) 'Best interests' as defined in Section 722 of Title 13 of the Delaware Code;

(6) 'Child welfare proceeding' means any Family Court proceeding and subsequent appeal therefrom involving custody, visitation, guardianship, termination of parental rights, adoption and other related petitions that involve a dependent, neglected or abused child or a child at risk of same as determined by a Family Court judge;

(9) 'Division' means the Division of Family Services of the Department of Services for Children, Youth and their Families;

(10) 'Guardian ad litem' means an individual appointed by the Court to represent the best interests of a child whether or not that reflects the wishes of the child, who by their appointment, shall be a party to the child welfare proceeding. The guardian ad litem is charged with obtaining a clear understanding of the situation and needs of the child, and making recommendations to the Court as to what is in the best interests of the child.

(12) ‘Permanency’ means the safe, stable, custodial environment in which a child is raised and the life-long relationship that child establishes with a nurturing caregiver.”

Section 14. Amend Section 3603 of Title 31 of the Delaware Code by deleting subsections (b) through (f) in their entirety and inserting the following in lieu thereof:

"(b) The program will include coordinators who will be members of the staff of the Family Court. The number and qualifications of coordinators will be established by the Chief Judge of the Family Court. The coordinators will be part of the Merit System. The coordinators will be responsible for the day-to-day operations of the program and will provide direct supervision to the Court Appointed Special Advocates (CASA).

(c) The program will include contract attorneys who will provide legal representation and advice for the Court Appointed Special Advocates and for the CASA Program. The program attorneys will be selected by the Chief Judge of the Family Court.

(d) The program will include volunteers to serve as Court Appointed Special Advocates at the pleasure of the Chief Judge of the Family Court. The Court Appointed Special Advocate may be appointed in child welfare proceedings or any other proceeding, as deemed appropriate by a Family Court judge."

Section 15. Amend Section 3604(a) of Title 31 of the Delaware Code, by inserting in the third sentence, after the word "must", "submit to background checks and".

Section 16. Amend Section 3605 of Title 31 of the Delaware Code, by striking subsections (b) through (e) and inserting subsections (b) through (d) as follows:

"(b) In the event that the Family Court Judge determines, pursuant to the conditions set forth in Section 701(c) of Title 13 of the Delaware Code that a Court Appointed Special Advocate should be appointed, the Family Court Judge shall sign an order appointing the Court Appointed Special Advocate as guardian ad litem. That order shall impose on the Court Appointed Special Advocate all the duties, rights and responsibilities set forth in this section. Upon entry of the order, the Court Appointed Special Advocate shall have the authority to review all documents and interview all pertinent persons having significant information relating to the child and the child’s life circumstances.

(c) The appointment shall last until the Court Appointed Special Advocate is released from responsibility by order of the Court, or until the Court Appointed Special Advocate's commitment to the Court ends.

(d) The Court Appointed Special Advocate shall be a party to any child welfare proceeding or any other proceeding in which the Court appointed Special Advocate has been appointed in which the child is the subject, and shall possess all the procedural and substantive rights of a party including but not limited to those set forth in Section 732 of Title 13 of the Delaware Code.”

Section 17. Amend Sections 3606 and 3607 of Title 31 of the Delaware Code by striking them in their entirety and inserting the following as Section 3606 to be titled “Same – Duties and Rights” in lieu thereof:

" The Court Appointed Special Advocate shall:

(a) represent the best interests of the child in all child welfare proceedings;

(b) provide independent, factual information to the Family Court regarding the cases to which he/she is appointed. To that end, the Court Appointed Special Advocate shall conduct an independent investigation of the circumstances surrounding a case of appointment. This investigation shall include interviews and/or observations of the child and relevant individuals, as well as a review of all relevant records or reports;

(c) submit a written or oral report to the Court for any Court proceeding;

(d) be provided with notice of every court proceeding and receive copies of every pleading;

(e) participate in all depositions, negotiations, discovery, pretrial conferences, hearings, and appeals;

(f) have access to all records regarding the child and his or her family maintained by the Division;

(g) receive reasonable notice from the Division of changes in placement, school, or any other change of circumstances affecting the child;

(h) monitor cases to which they are appointed to assure that the terms of the Court’s orders are fulfilled and permanency for the child is achieved;

(i) receive reasonable notice from the Division of any founded complaint involving: (1) the child, where the child is the alleged victim; (2) the residence in which the child lives; and/or (3) the home-based daycare which the child attends;

(j) request a hearing before the Court when the plan on behalf of the child is not implemented, is not meeting the child’s needs or upon completion of the investigation;

(k) request any appropriate relief from the Court on behalf of the child; and

(l) ascertain the wishes of the child and make the child's wishes known to the Court. If the Court Appointed Special Advocate concludes that the child’s wishes differ from the position of the Court Appointed Special Advocate, he or she will notify the Court of the conflict.”

Section 18. Amend Section 3608 of Title 31 of the Delaware Code by re-numbering it as Section 3607, by striking "5101" and inserting "5106" in lieu thereof, and by inserting the word "best" before the word "interests".

Section 19. Amend Section 3609 of Title 31 of the Delaware Code by re-numbering it as Section 3608.

Section 20. Amend Section 3610 of Title 31 of the Delaware Code by re-numbering it as Section 3609, by inserting the word "appeals," after the word "dispositions", and by striking the phrase "case to which" and inserting the phrase "child for whom" in lieu thereof.

Section 21. Amend Section 3611 of Title 31 of the Delaware Code by re-numbering it as Section 3610, and by adding the phrase "treatment facility," after the word "provider".

Section 22. Amend Sections 3612 and 3613 of Title 31 of the Delaware Code by re-numbering them as Sections 3611 and 3612 respectively.

Approved July 21, 2000