Representation of Children in Child Abuse and Neglect Proceedings - Kansas

Date:

Making The Appointment

Citation: Ann. Stat. § 38-2205

Upon the filing of a petition, the court shall appoint an attorney to serve as guardian ad litem (GAL) for a child who is the subject of the proceedings. When the child's position is not consistent with the determination of the GAL as to the child's best interests, a second attorney may be appointed to serve as attorney for the child.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Stat. § 38-2206

The court at any stage of a proceeding may appoint a special advocate for the child who shall serve until discharged by the court and whose primary duties shall be to advocate the best interests of the child and assist the child in obtaining a permanent, safe, and homelike placement. The CASA shall have such qualifications and perform such specific duties and responsibilities as prescribed by rule of the supreme court.

Qualifications/Training

Citation: Ann. Stat. § 38-2205; KS Sup. Ct. Rule 110A

The GAL shall be an attorney.

In court rules: As a prerequisite to appointment, a GAL must complete at least 6 hours of education, including 1 hour of professional responsibility. An appointed GAL also must participate in continuing education consisting of at least 6 hours per year. Areas of education should include, but are not limited to, the following:

  • Dynamics of abuse and neglect
  • Roles and responsibilities
  • Cultural awareness
  • Communication skills, including communication with children
  • Information gathering and investigatory techniques
  • Advocacy skills
  • Child development
  • Mental health and substance abuse issues
  • Permanency and the law
  • Community resources
  • Professional responsibility
  • Special education and school law
  • The code for the care of children

Specific Duties

Citation: Ann. Stat. § 38-2205; KS Sup. Ct. Rule 110A

The GAL shall make an independent investigation of the facts upon which the petition is based and shall appear for and represent the best interests of the child. When the child's position is not consistent with the determination of the GAL as to the child's best interests, the GAL shall inform the court of the disagreement. The GAL or the child may request the court to appoint a second attorney to serve as attorney for the child, and the court, on good cause shown, may appoint such second attorney. The attorney for the child shall allow the child and the GAL to communicate with one another but may require such communications to occur in the attorney's presence.

A GAL appointed to represent the best interests of a child or a second attorney appointed for a child shall continue to represent the child at all subsequent hearings in the proceedings, including any appellate proceedings, unless relieved by the court upon a showing of good cause or upon transfer of venue.

In court rules: A GAL must conduct an independent investigation and review all relevant documents and records, including those of social service agencies, police, courts, physicians, mental health practitioners, and schools. Interviews€”either in person or by telephone€”of the child, parents, social workers, relatives, school personnel, CASAs, caregivers, and others having knowledge of the facts are recommended. Continuing investigation and ongoing contact with the child are mandatory.

A GAL must determine the best interests of the child by considering such factors as the following:

  • The child's age and sense of time
  • The child's level of maturity
  • The child's culture and ethnicity
  • The degree of the child's attachment to family members, including siblings
  • Continuity, consistency, and permanency
  • The child's sense of belonging and identity
  • The results of the investigation

A GAL must do the following:

  • File appropriate pleadings and other papers on the child's behalf
  • Represent the best interests of the child at all hearings
  • Present all relevant facts, including the child's position
  • Submit the results of the GAL's independent investigation and recommendations regarding the child's best interests
  • Vigorously advocate for the child's best interests by doing the following:
    • Calling, examining, and cross-examining witnesses
    • Submitting and responding to other evidence
    • Making oral and written arguments based on the evidence that has been or is expected to be presented

The GAL also must do the following:

  • Explain to the child the court proceedings and the GAL's role in terms the child can understand
  • Recommend appropriate services for the child and the child's family
  • Monitor implementation of service plans and court orders

If the child disagrees with the GAL's recommendation, the GAL must inform the court of the disagreement. The court may, for good cause, appoint an attorney to represent the child's expressed wishes. If the court appoints an attorney for the child, that individual serves in addition to the GAL. The attorney must allow the child and the GAL to communicate with one another but may require the communications to occur in the attorney's presence.

How the Representative Is Compensated

Citation: Ann. Stat. §§ 38-2205; 38-2215(b)

An attorney appointed pursuant to this section shall be allowed a reasonable fee for services that may be assessed as an expense in the proceedings.

The expenses for proceedings under this code, including fees and expenses approved by the court for appointed attorneys, shall be paid by the board of county commissioners from the general fund of the county.