March 01, 2015

Child's Attorney Subject to Removal for Not Representing Child's Wishes

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Castro v. Hochuli, 2015 WL 509646 (Ariz. Ct. App.).

Where child stated that he wanted to live with his father, who had killed his mother, court should have heard evidence to determine whether child’s attorney was acting contrary to her duties by supporting termination petition.

A child entered foster care after his father shot and killed his mother. Shortly thereafter, the child’s attorney filed a petition to terminate the father’s rights. The child was also appointed a guardian ad litem (GAL) at that time.

At a review hearing, the child’s attorney told the judge the child had said he wanted to live with his father, but she believed he had been coached. The GAL moved for substitute counsel contending the child had mentioned wanting to live with the father to multiple people and the child’s attorney, by continuing to pursue termination, was not acting according to the client’s wishes.

The trial court denied the motion without prejudice. The court stated the issue was not ripe for determination because no prejudice could be shown since the termination petition had not yet been heard.

The Arizona Court of Appeals found the trial court erred in not addressing the motion for removal.

First, the court addressed the child’s attorney’s claim that a GAL lacks authority to seek removal of a child’s attorney, citing state case law holding that a GAL lacked authority to make decisions on behalf of a client unless the court makes a finding of incompetency. The court held that case was distinguishable since the matter in contention involved an adult. Since state statute allows GALs for persons who are "incompetent" or "minors," no competency hearing is required when a GAL for a minor seeks to protect the child’s interests.

Next, the appellate court considered the trial court’s finding that the issue was not ripe for consideration. It disagreed with the finding, reasoning that deciding if the attorney lacked authority should have been resolved before the case went to a termination hearing because, presumably, the petition could be withdrawn upon that determination.

The appellate court remanded the case so the trial court could decide if the child’s attorney’s continued pursuit of termination of parental rights was contrary to the child’s wishes. If the attorney failed to represent the child’s wishes, the attorney’s removal would be required

In Arizona child welfare cases, a child may have an attorney, a GAL, or both. Under Arizona Rules of Professional Conduct and the ABA Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases, these child representatives have distinct duties. Attorneys must represent the child according to the child’s decisions about the objectives in the case. GALs, in contrast, represent the child’s best interests.