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Bar News - February 9, 2007


An Update from the NH Guardian ad Litem Board

By:

 

Next year promises to be an important year for the NH Guardian ad Litem Board. The Board recently finished drafting its administrative rules, a project that it has been working on diligently for the last six years. Last year, the Supreme Court advised the guardian ad litem Board that it intended to have courts appoint only board-certified guardians ad litem as of July 2007. Also in 2007, the Board expects to start hearing disciplinary cases. The Board will continue its existing practices of training and certifying guardians ad litem as well as participating in policy decision-making with the court system and legislature.

 

Board Background and Role

           

The Guardian ad Litem (GAL) Board was created in 2000 by statute, and is tasked with overseeing guardians ad litem in New Hampshire. At the time the Board was established, there was much interest in resurrecting GAL training, which had not been held by the courts since the mid-1990s. A number of court-certified GALs had left the practice, and there was a great need for GALs in some geographical areas. At the same time, there were voices from the public advocating for more oversight and control over the GALs. A study committee was formed by the legislature to explore GAL issues in 1999. As a result of the study committee, the 2000 legislation was passed to create the Board. This legislation was amended and would later become RSA 490-C.

           

By statute, the Board is comprised of nine members representing a variety of interests involved in the legal system: the Court, the Judicial Council, the Senate, the House of Representatives, child protection agencies, two members of the public, CASA and guardians ad litem. Although the composition of the board has changed a little over the years, the nine current board members still bring a variety of perspectives to the group. Current board members include Chairman Linda Griebsch (member of the public); Sen. Sheila Roberge; Rep. Mary Beth Walz; the Hon. Michael Garner; Executive Director of the Judicial Council Nina Gardner; Attorney Jack Lightfoot (child protection advocate); Susan Duncan (member of the public); Attorney David Sandberg (CASA); and Attorney Henrietta Luneau (guardian ad litem representative).

           

The Board meets monthly and has additional work sessions scheduled as needed. Meetings are public, and consist of rulemaking, reviewing training, and eventually, disciplinary hearings. The Board conducts non-public sessions for reviewing and voting on applications. Board members have also met in smaller subcommittees to work on legislative issues and training.

           

The GAL Board is unique in that it functions as an executive board, has been created by the legislature, and performs functions that have historically been under the judicial branch. Previously, training, certification and disciplinary rules for guardians ad litem had been were the exclusive domain of the court system.

 

The Board’s Rulemaking Work

           

In order to complete its mission, the Board would need to develop rules for GAL standards of practice, disciplinary proceedings, certification, qualification and trainings, and other issues. Work on these issues began in 2001. An attorney from the state who specialized in rulemaking was assigned to work with the Board on drafting the rules. The drafting process took several years of monthly meetings, with additional work sessions during the summer months. The Board reviewed each provision in detail.

           

Many of us on the Board were familiar with court rules, but the administrative rulemaking process proved to be much more complex. Administrative rules by nature are much more concrete. Unlike court rules, which are subject to a reasonable-person standard of interpretation, administrative rules do not have that luxury; they require an answer that is either affirmative or negative. Hence, much more detail was needed with these rules. It was necessary to review each provision fully to determine how it might be interpreted in the future. Additionally, the administrative rules process required the Board to designate in detail its applications and other forms directly in its rules, as well as the mechanics of the three-year certification and re-certification process.

           

The Board felt the need to be thorough in its rules because of the nature of the GAL profession, as well as its need to perform a function that has traditionally been judicial. Under current law, if an executive board has no rules on point, there is a generic set of rules that applies for all boards. Given that guardian ad litem work was such a unique profession, the Board felt it would be best to have a set of its own rules for disciplinary and certification areas that would be a custom-fit to this profession.

           

One of the other reasons for the lengthy time in creating the rules was the need to amend the Board’s statute in order for the Board to function the way that it wanted to. Before the Board could move forward with disciplinary rules, there were issues about the handling of confidential information that needed to be addressed. For instance, some cases were confidential by statute, but that confidential information might need to be disclosed in the context of a disciplinary proceeding. RSA 490-C underwent a complete revision just last year to address concerns about handling confidential information in disciplinary proceedings and to clarify other issues.

           

As of December 2006, the Board had voted on a complete set of draft rules. The topics of the rules break down into the following headings:

 

  • Chapter 100—Organization (includes organizational rules, definitions, board procedures and meetings.)
  • Chapter 200—Procedural Rules (includes procedural rules, due process for complaints and disciplinary hearings, rulemaking petitions, public comment hearings, and declaratory rulings.)
  • Chapter 300—Certification Requirements & Fees (includes rules on certification requirements, qualifications, certification and training.)
  • Chapter 400—Renewal of Certification, Sanctions, Continuing Education and Ongoing Requirements (includes rules on continued certification status, renewals of certification, sanctions, continuing education);
  • And Chapter 500—Ethical Standards and Standards of Practice (includes ethics, obligation and standards, both general and in specific types of cases).

The draft rules are available on the Board’s Web site, www.nh.gov/gal/rules.htm, for review. Many of them parallel the court’s system-wide guidelines, but many of them differ and/or cover topics that are not covered in the court rules and guidelines. The above list of topics is only intended as a guideline. The Board felt that it could not condense the rules into a summary that would adequately cover all the topics, and that it would be especially important for practitioners to read the rules.

           

There is a Public Comment Hearing on Feb. 9, 2007 at the State House. The purpose of the hearing is to receive input on the adoption of the proposed GAL Rules.

 

Looking to the Future

           

Last year, the Supreme Court informed the Board that it wants the courts to appoint only Board-certified GALs as of July 1. It is the Board’s goal to have the new rules become effective in the summer of 2007, so that the Board will be in a position to provide oversight by the Court’s deadline. The actual timing of the effective date of the rules will depend on a number of factors that are beyond the board’s control, such as approval by JLCAR, the legislative entity that must approve executive board rules.

           

After the rules have been approved and finalized, the Board expects to be able to process complaints and hold disciplinary hearings. The Board will also continue training and certifying new guardians ad litem. A spring training schedule is expected to be announced shortly. The Board will recertify and provide continuing education classes to those GALs it has already certified. The Board has also begun working on a brochure for the public addressing frequently asked questions about guardians ad litem.

           

If the courts move towards appointing only Board-certified guardians ad litem, that will mean that all current guardians ad litem practicing under court certification will need to complete board certification in order to get appointments. The exact details about the transition are still under consideration by the Court. The Guardian ad Litem Board hopes to work with the Court on the transition.

           

It has become apparent to the Board that, especially for ongoing cases, the Court continues to have a very important role to play in overseeing the guardian ad litem’s work within a case. The Guardian ad Litem Board hopes to be able to work with the Supreme Court Rules Committee to rework the Court’s rules so that Board and Court rules will be compatible and consistent with one another. This will benefit the guardians ad litem, the people whose interests they serve, the courts, and the public.

 

For More Information

           

The proposed GAL Board rules are available online at the Board’s Web site: www.nh.gov/gal/rules.htm. The rule-making notices for these rules can also be found at http://www.gencourt.state.nh.us/rules/2007issues.html.

           

The Guardian ad Litem Board will accept written comments on the rules until 4 p.m. on Feb. 20, 2007. Comments should be mailed to Guardian ad Litem Board, 125 Capital St., Room 120, Concord, NH 03301-6312, e-mailed to Pat.Heinrich@nh.gov, or faxed to 603-271-6600. For more information, contact Patricia Heinrich, board administrative assistant, at 603-271-1199.

 

Attorney Henrietta Luneau practices with the Law Offices of David J.T. Burns in Concord. She has a small-firm general practice with a focus on family law and Guardian ad Litem work. She is a member of the New Hampshire Guardian ad Litem Board.

 

 

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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