4.6​Lawyer-Guardian Ad Litem

Because an adoption may result from a child protective proceeding, a brief discussion of lawyer-guardian ad litems is included. For a detailed discussion of lawyer-guardian ad litems, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook.

During a child protective proceeding, the court must appoint a lawyer-guardian ad litem to represent the child, and the child may not waive the lawyer-guardian ad litem’s assistance. MCL 712A.17c(7). The MIFPA also permits the court to appoint a lawyer-guardian ad litem for an Indian child if the court finds the appointment to be in the child’s best interests. MCL 712B.21(2). For additional information on the ICWA and the MIFPA requirements as they pertain to an Indian child, see Chapter 11.

A lawyer-guardian ad litem is appointed to represent the interests of a child. MCL 712A.13a(1)(g); MCL 712A.17d(1). The lawyer-guardian ad litem’s powers and duties include:

(1) Respecting the attorney-client privilege.

(2) Serving as independent representation for the child’s best interests.

(3) Entitlement to fully and actively participate in the litigation.

(4) Access to all relevant information regarding the child.

(5) Conducting his or her own independent investigation, including interviewing the child, social workers, family members, and anyone else who may be necessary.

(6) Reviewing relevant reports and any other relevant information.

(7) Mandatory review of the agency case file before disposition and before the parental termination hearing.

(8) Mandatory review of all updated material as it is provided to the court and parties.¹⁸

(9) Meeting with or observing the child¹⁹ and assessing his or her needs and wishes in regards to the representation and issues in the case at the following times:

(a) Before the pretrial hearing.

(b) Before the initial disposition (if held more than 91 days after the petition has been authorized).

(c) Before a dispositional review hearing.

(d) Before a permanency planning hearing.

(e) Before a posttermination review hearing.

(f) At least once during the pending of a supplemental petition.

(g) At other times as ordered by the court. Unless directed by the court, adjourned or continued hearings do not require additional visits.

(10) Explaining to the child, considering the child’s level of understanding, the role of a child’s lawyer-guardian ad litem.

(11) Filing all necessary pleadings and papers.

(12) Independently calling witnesses on the child’s behalf.

(13) Attending all hearings or substituting representation on the child’s behalf with court approval.

(14) Making a determination regarding the child’s best interests, and advocating for those best interests.

Note: Although relevant to the best-interest determination, the lawyer-guardian ad litem must weigh the child’s wishes against the child’s competence and maturity, and the best-interest determination may not reflect the child’s wishes.

(15) Informing the court of the child’s wishes and preferences in a manner consistent with the attorney-client privilege.

(16) Monitoring the implementation of case plans and court orders, and determining whether the court-ordered services are being timely provided and accomplishing their intended purpose.

Note: It is the lawyer-guardian ad litem’s duty to inform the court if the services are not being provided in a timely manner, the family is not taking advantage of the services, or the services are not accomplishing their intended purpose.

(17) Consistent with the rules of professional responsibility, identifying common interests among the parties and, to the extent possible, promoting a cooperative resolution of the matter through consultation with the child’s parents, foster care provider, guardian, and caseworker.

(18) Requesting the court’s authorization to pursue any additional issues on the child’s behalf that do not arise specifically from the court appointment.

(19) Participating in early childhood, child, and adolescent development.

(20) Participating in trauma-informed training if the State Court Administrative Office offers it. MCL 712A.17d(1).

The lawyer-guardian ad litem and the Michigan Children’s Institute (MCI) superintendent must consult with one another if the lawyer-guardian ad litem has an objection or concern regarding the child’s placement or permanency plan. MCL 400.204(2).

A court-appointed lawyer-guardian ad litem must serve until he or she is discharged by the court. MCL 712A.17c(9). If a lawyer-guardian ad litem was appointed in a child protective proceeding, “the court shall not discharge the lawyer-guardian ad litem for the child as long as the child is subject to the jurisdiction, control, or supervision of the court, or of the [MCI] or other agency, unless the court discharges the lawyer-guardian ad litem for good cause shown on the record. If the child remains subject to the jurisdiction, control, or supervision of the court, or the [MCI] or other agency, the court shall immediately appoint another lawyer-guardian ad litem to represent the child.” Id.