Rule 306 - [Effective 1/1/2025] Duties of Child's Attorney or a Child's GAL(a) Explain the Role. An attorney or GAL appointed for a child must explain to the child and the child's caregivers the attorney or GAL's role and the ethical obligations associated with the attorney or GAL's role. A GAL must explain that the GAL has no attorney-client privilege with the child. (1)Attorney.(A)Relationship. The child's attorney must maintain a normal attorney-client relationship with the child in accordance with the rules of professional conduct when the child is capable of directing the representation by expressing the child's objectives.(B)Diminished Capacity. The child's attorney must determine whether the child has the capacity to make adequately considered decisions pursuant to E.R. 1.14. In making the determination, the attorney should consult the child and may consult other individuals or entities to determine the child's ability to direct the representation. When a child has diminished capacity, the child's attorney must make a good faith effort to determine the child's needs and wishes. The attorney must, as far as reasonably possible, maintain a normal attorney-client relationship with the child.(C)Substituted Judgment. During any period in which a normal attorney-client relationship is not reasonably possible to maintain, the child's attorney must make a substituted judgment. The attorney must advise the court of the determination of capacity that requires substituted judgment and any subsequent change in that determination. A substituted judgment includes determining what the child would decide if the child was capable of making an adequately considered decision and representing the child in accordance with that determination. The attorney should take direction from the child as the child develops the capacity to direct the attorney.(2)GAL. The child's GAL must assist the court in determining what is in the child's best interests and is not bound by the child's expressed preferences.(b) Provide Information About Court Proceedings. An attorney and GAL must keep the child informed, in an age and developmentally appropriate manner, of the nature of each court proceeding, the child's right to attend hearings and speak with the judge, any benefits or consequences of the child's participation or lack of participation, the possible outcomes of each hearing, the child's appellate rights, and other legal rights regarding the dependency proceeding, and must explain the outcome of each hearing to the child.(c) Participate in the Proceedings. When appropriate, an attorney and GAL must participate in discovery, file pleadings, and subpoena witnesses. An attorney and GAL must develop a position for each hearing. The duties of an attorney and GAL include identifying appropriate family and professional resources for the child. The attorney and GAL must inquire of the child regarding potential placements and communicate this information to DCS and the court as appropriate. The child's attorney must also ensure the child's position is fully and fairly represented during an appeal, which may include the filing of a brief or a notice of joinder in another party's brief.(d) Meet with the Child. The attorney and GAL must meet in person with the child before the preliminary protective hearing, or if that is not possible, no later than 14 days after the preliminary protective hearing. The attorney must ensure that the child has the attorney's contact information, which may include providing such information to the child's caregiver. Thereafter, the attorney and GAL must have meaningful in-person communication with the child before every substantive hearing. Substantive hearings include all preliminary protective hearings, all review hearings, permanency hearings, any hearings involving placement, visitation or services, or any hearing to adjudicate dependency, guardianship, or termination. Upon a showing of extraordinary circumstances, a judge may modify the requirements of this section for a particular substantive hearing. At each substantive hearing the attorney and the GAL must inform the court of the child's position concerning pending issues and the GAL must inform the court of what is in the child's best interests. If the child is not present, the attorney or GAL must provide an explanation for the child's absence.(e) Observe Placements. In all cases, if practicable and appropriate, an attorney and GAL should observe the child's residential environment and the child's interaction with the caregiver.(f) Confer with Others. To meet the obligation of informed representation, an attorney and GAL must maintain appropriate contact and communications with caregivers, child safety investigators and workers, service providers, childcare providers, CASAs, relatives, and any other significant persons in the child's life.(g) Attend Meetings. To the extent possible, a child's attorney and GAL should attend or provide input at a DCS staffing, Foster Care Review Board review, and Child and Family Team meeting.(h) Use Support Staff. Except for the initial meeting with the child, an attorney and GAL may use appropriately trained support staff to assist in the performance of the duties listed in this rule, unless the law requires otherwise. Support staff performing these duties must adhere to this rule.(i) Possess General Knowledge. An attorney and GAL must have knowledge of the child welfare agencies, governmental programs, and community-based service providers and organizations serving children (e.g., behavioral health, developmental disability, health care, education, financial assistance, counseling support, family preservation, reunification, permanency services, and juvenile justice). An attorney and GAL must be knowledgeable about how to access these services and advocate for appropriate services for the child.Added Dec. 8, 2021, effective 7/1/2022; amended August 22, 2024, effective 1/1/2025.COMMENT TO 2022 AMENDMENT
In developing the standards on which this rule is based, the Court considered best practices within Arizona and well-accepted standards developed by nationally recognized organizations. In particular, the standards for representation outlined in the American Bar Association's Standards for Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, the National Association for Counsel for Children's Revised Version of the ABA Standards, and the Resource Guidelines published by the National Council for Juvenile and Family Court Judges were instructive in developing the standards for Arizona. In addition to adhering to this rule, Arizona attorneys and GALs should be familiar with and consult these national standards and references to ensure the highest standard of practice in this important area of the law.