Rule 6.Representation by Attorneys and Guardians Ad Litem of Minors

REPORTER'S NOTES--2022 AMENDMENT: The Vermont Supreme Court promulgated V.R.P.P. 80.9 (Representation by Guardians ad Litem of Minors) and V.R.P.P. 80.10 (Representation by Attorneys and Guardians ad Litem of Adults in Specified Proceedings) on June 12, 2020, effective August 18, 2020. Prior to that time, the appointment of guardians ad litem and attorneys in these probate proceedings were governed by V.R.F.P. 6 and 6.1. In light of the promulgation of probate rules for the appointment of guardians in probate guardianship proceedings, it is no longer necessary for the family rules to apply to these proceedings. In addition, the title of 18 V.S.A. Chapter 206 is amended to be consistent with legislation enacted in 2014. 2013, No. 96 (Adj. Sess.), § 114.

REPORTER'S NOTES--2010 AMENDMENT: Emergency amendments to V.R.F.P. 1-3, 6, and 12 intended to implement 33 V.S.A. chapters 51-53 as enacted by Act 185 of 2007 (Adj. Sess.), effective January 1, 2009, were promulgated on December 17, 2008, effective January 1, 2009, with a direction that the Advisory Committee on Family Rules report on any comments received by September 30, 2009. No comments having been received, these amendments are now made permanent.

REPORTER'S NOTES--2009 EMERGENCY AMENDMENT: Rule 6 is amended on an emergency basis to incorporate in the rule changes made necessary by the enactment of Act No. 185 of 2007 (Adj. Sess.), which repealed 33 V.S.A. chapter 55 covering juvenile proceedings and replaced it with 33 V.S.A. chapters 51-53, effective January 1, 2009. Simultaneous amendments have been made to Rules 1, 2, 3, and 12. The changes substitute references to, or language from, appropriate sections of the newly enacted legislation. See Reporter's Notes to those amendments.

REPORTER'S NOTES--1996 AMENDMENT: Rule 6(c)(3) is amended to delete this sentence as it was inadvertently added to the rule promulgated by the Supreme Court on August 19, 1995, effective on December 1, 1995. The requirement that the guardian ad litem be a disinterested person was intended to apply only to adults in certain specified proceedings and is now covered by Rule 6.1(c)(3).

REPORTER'S NOTES--1995 AMENDMENT: Rule 6 is amended in connection with the simultaneous promulgation of Rule 6.1. The purpose of the amendments and the new rule is to separate the procedures and roles for attorneys and guardians ad litem in cases involving minors from those in cases involving adults. Rule 6 will now govern only Family Court cases involving minors (juvenile proceedings and guardianships of minors). Rule 6.1 covers proceedings involving adults who may benefit from the appointment of a guardian ad litem. Rule 6(a) is amended to eliminate references to proceedings now covered by Rule 6.1. See Rule 6.1(a). Rule 6(b) is amended to limit its applicability to juvenile proceedings under 33 V.S.A. Chapter 55. The final sentence of Rule 6(c)(1) is deleted. Appointment of a guardian ad litem for an adult who is not a party to the proceeding may be made pursuant to the court's inherent power. See 14 V.S.A. § 2657. Rule 6(c)(2) is amended to limit its applicability to guardianships of minors and to clarify the language of the second paragraph. Rule 6(c)(3) is amended to require that a person appointed as guardian ad litem be “disinterested” and not related to the parties. The purpose of this provision is to permit the court to consider possible conflicts of interest that may arise when a relative, or a state agency in a custodial relationship, serves as guardian. The final sentence of Rule 6(c)(3) is eliminated because guardians of incompetent adults are now covered in Rule 6.1. Rule 6(d) remains unchanged. Rule 6(e)(3) is amended by the addition of a sentence making clear that the guardian ad litem may communicate concerns about the representation to the court at any time at the hearing. The rule provides the option of written communication because communication in open court may be intimidating for a lay guardian. The remainder of Rule 6(e) remains unchanged. Rule 6(f) remains unchanged.

REPORTER'S NOTES--1991 EMERGENCY AMENDMENT: After new Family Court Rule 6 was promulgated, the Advisory Committee received comments raising an important issue not brought to the Committee's attention during the formal comment period. The language of Rule 6(d)(3) appeared to require that an evidentiary hearing be held before any ruling could be entered on each of the criteria set forth in that subdivision. This appeared to require greater judicial involvement than the model upon which this rule was based, change of plea proceedings under Criminal Rule 11. In some proceedings this would cause unnecessary delay. The Committee therefore recommended that the rule be changed to replace the words “finds, after hearing” by the words “determines, after opportunity to be heard.” These changes bring the rule into conformity with Criminal Rule 11. (For example, V.R.Cr.P. 11(d) bars acceptance of plea unless the trial court first addresses defendant personally, “determining” that the plea is voluntary.) These changes authorize the court to make the necessary rulings without convening an evidentiary hearing, although in its discretion it is free to do so. See W. LaFave and J. Israel, Criminal Procedure at 653 (West 1984) (generally courts are able to determine factual basis for a plea under federal rule 11 by inquiring of defendant and prosecutor and examining court documents). The Committee recommended that these changes be made before the effective date of the rule, and the Court agreed.

REPORTER'S NOTES: This rule is adopted after lengthy study by the Court's Advisory Committee on Rules for Family Proceedings. The rule establishes the roles of attorneys and guardians ad litem in the various actions listed in subdivision (a)--juvenile court proceedings, involuntary guardianships, involuntary treatment proceedings, sterilization proceedings, proceedings pertaining to placement at the Brandon Training School, and protective services proceedings. Proceedings under this rule involve actions in which the state is a party adverse to a ward. Representation by an attorney is critical to maintaining a fair balance between the state and the individual. The two most important provisions of this rule, subdivisions (d) and (f) (setting forth procedure by which waivers of important rights may be made on behalf of wards and defining the roles of guardians ad litem in particular proceedings), in particular, could not function without representation by counsel. Subdivision (b) therefore requires that counsel be appointed in all cases covered by the rule, unless counsel already has been retained. Although the juvenile court statute makes appointment of counsel optional, the uniform practice within the juvenile court has been to make the assignment in all cases. The rule conforms to prevailing practice in juvenile proceedings and supersedes the statute. Vermont statutes on involuntary treatment, involuntary sterilization, Brandon Training School, protective services and involuntary guardianships mandate appointment of counsel. 14 V.S.A. § 3065, as amended by 1991, No. 38, § 1; 18 V.S.A. §§ 7510, 7613, 8710, 8825, 9308. The rule implements these statutes. Subdivision (c) governs appointment of guardians ad litem. The rule recognizes that guardians ad litem play an important role in safeguarding the rights of minors. See Reporter's Notes to V.R.C.P. 17(b) (under Pettengill v. Gilman, 126 Vt. 387, 232 A.2d 773 (1967), judgment against incompetent person, unrepresented by guardian ad litem, may be set aside) and 33 V.S.A. § 5525 (appointment of guardian ad litem mandatory unless counsel appointed). In contrast to the appointment of attorneys, however, guardians ad litem are not required in all cases under this rule. Under subdivision (c)(1), Family Court Rules 1, 2 and 3 govern appointment of guardians ad litem in juvenile court proceedings. Following 33 V.S.A. § 5525, these rules mandate appointment of guardians ad litem but leave to the discretion of the court whether a substitute for the child's parent should be appointed to serve that role. Subdivision (c)(1) also recognizes that an adult party in juvenile court may need the assistance of a guardian ad litem (for example, a developmentally disabled adult parent). As subdivision (c)(1) states, subdivision (c)(2) provides the procedure for appointment of guardians ad litem for these adult parties. The procedure under subdivision (c)(2) calls upon the court to rule upon a request for guardian ad litem upon motion and hearing. If, however, the child's parent has not yet attained the age of majority, no motion or hearing is needed; under this rule (and Vermont precedent) a minor always requires the assistance of a guardian ad litem. Both the parent and the child are “children” for purposes of subdivision (c)(1). Subdivision (c)(2) provides that in all other proceedings guardians ad litem are to be appointed upon motion and hearing. The rule does not set forth the standard by which motions will be decided. This is left to caselaw. See Morissette v. Morissette, 143 Vt. 52, 463 A.2d 1384 (1983) (capacity to understand the nature of the proceedings), Pettengill, supra, and W. LaFave and A. Scott, Criminal Law 332-36 (1986) (summarizing standards) and subdivision (f) of this rule (setting forth role of guardian ad litem). The motion may be filed by any attorney or party. It must be supported by affidavit. The court also may raise the issue on its own. Except where the proposed ward consents to the motion in open court, the motion and affidavit must be served upon the proposed ward. The motion cannot be granted except after hearing, unless the proposed ward consents in open court and the court finds in the exercise of its discretion that the affidavit provides sufficient support for the motion. The rule requires that hearings on motions to appoint guardians ad litem be scheduled expeditiously, and sufficiently in advance of the hearing on the merits so as to allow adequate time for the guardian ad litem, once appointed, to meet with the ward and the ward's attorney to prepare for the hearing on the merits. In order to facilitate scheduling of the hearing on the motion, V.R.C.P. 78(b) is made inapplicable to these motions. For the same reason, attorneys who believe they have grounds for filing motions for appointment of guardian ad litem should do so promptly. When the proposed ward is served with the motion or affidavit he or she also must be served with a “clear explanation that the proposed ward need not consent to the motion, and that the person has a right to appear in person before the court to object, or may object by letter.” Subdivision (c)(3) makes explicit that it is the judge who has the authority to select and replace guardians ad litem, in the exercise of each judge's discretion. The discretion to choose or substitute guardians ad litem, however, is limited by the duty to discharge a guardian ad litem once the court finds that the reason for appointing a guardian ad litem has ceased to exist. State v. Ladd, 139 Vt. 642, 433 A.2d 294 (1981). The concluding sentence of subdivision (c) articulates the holding of Ladd. Subdivision (d) governs the authority of the guardian ad litem and the ward to enter into waivers, admissions and settlements. Under Pettengill, supra, counsel and a guardian ad litem lack the authority to submit a case to the court on conceded facts unless the facts are to the ward's advantage. This rule implements the concerns underlying Pettengill. Subdivision (d)(1) calls for judicial supervision of all settlements, stipulations and waivers which affect the ward's substantial rights and interests. The emphasis is on “substantial” rights, not merely substantive rights. Substantial procedural rights are intended to be reviewed by the court. The court will be exercising its discretion; no specific findings or conclusions are needed, unless the matter is one governed by subdivision (d)(3) of the rule, discussed below. Subdivision (d)(2) addresses those situations in which a ward and a guardian ad litem may find themselves in disagreement. In order to ensure that the court is informed of all relevant information, and in order to protect the rights of the ward while preserving the function of the guardian ad litem, this subdivision requires the attorney for the ward to fully inform the court of the guardian ad litem's point of view (as well as that of the ward). The guardian ad litem also has the right to address the court. However, the rule specifies that the guardian ad litem shall not disclose privileged information or information that has not been admitted into evidence. In those conflict situations in which the guardian ad litem is relying upon unprivileged information not admitted into evidence, the court may wish to assign counsel to the guardian ad litem so that this information may be properly presented. See the discussion below of subdivision (e), the role of the guardian ad litem. Subdivision (d)(3) comes into play when a ward or a guardian ad litem wishes to waive a constitutional right of the ward, enter an admission to the merits of a proceeding, or waive patient's privilege under V.R.E. 503. The court shall not accept any such waiver or admission unless, after hearing, the court finds that each of the four criteria of the rule has been satisfied. First, the court must find that there is a factual and legal basis for the proposal. See V.R.Cr.P. 11(f) (factual basis for plea agreement) and In re Dunham, 144 Vt. 444, 479 A.2d 144 (1984) (applying V.R.Cr.P. 11(f) and holding that the factual basis for each element of a criminal charge must affirmatively appear in the record of the change of plea). Some procedural defects may not be waived, regardless of the intent of the parties. For example, the assistance of a guardian ad litem is not subject to waiver if, under the law, a guardian otherwise would be required. In re Dobson, 125 Vt. 165, 212 A.2d 620 (1965). Second, the court must find that the attorney has investigated the relevant facts and law, and has consulted with the client and guardian ad litem if any. Third, the court must find that the waiver or agreement is in the best interest of the minor or allegedly incompetent person. Finally, the court must find that the agreement is being entered into knowingly and voluntarily by the ward and by the guardian ad litem. Compare V.R.Cr.P. 11(d) (determining that plea of guilty is voluntary). The rule has been drafted to make clear that each of these four criteria must be met; an abundance of evidence on one criterion cannot compensate for a deficiency of evidence on any other. Patient's privilege is included, along with constitutional waivers and admissions on the merits, for a number of reasons. First, it is the policy of the Family Court Rules to encourage litigants and potential litigants to seek the assistance of mental health professionals and other therapists, without undue fear of later disclosure. Second, involuntary waiver of patient's privilege in the Title 18 proceedings to which this rule applies often would have the effect of an admission on the merits. This not only would deter patients from seeking treatment but, without the procedural protections the rule provides, would be fundamentally unfair. Subdivision (d)(4) dispenses with part of the fourth finding under (d)(3), the requirement of consent by the ward. Consent by the ward is not needed if that person “because of minority or mental or emotional disability,” is “unable to understand the nature and consequences of the decision or is unable to communicate with respect to the decision.” The rule sets forth several presumptions to determine a minor's ability to communicate with respect to the decision. Persons twelve years old or younger are rebuttably presumed to be incapable. Persons thirteen years old or older are rebuttably presumed to be capable. The presumptions have the effect set forth in Vermont Rule of Evidence 301 and they also have the effect of allocating burdens of proof (which is not true under V.R.E. 301). Thus, for example, a child of ten years has the burden of proving capacity to communicate with respect to the decision; once he or she produces any admissible evidence in support of capacity the presumption “bursts” and the question is strictly one of meeting a burden of persuasion. Subdivision (d)(4) contains an important caveat. If a person is accused of a crime or delinquent act in a proceeding under this rule, the court cannot accept the settlement or waiver without that person's knowing and voluntary consent. Subdivision (e) defines the role of the guardian ad litem. Subdivision (e)(1) provides that the guardian ad litem shall act as the ward's “independent, parental advisor and advocate.” Well-prepared, concerned guardians ad litem are essential to the proper functioning of the family court. These rules require that counsel be appointed to represent a ward in every proceeding subject to these rules, but a lawyer alone cannot adequately represent a client who is a minor or otherwise under a disability. A lawyer needs a client who can make, or share in the making of, important decisions. As pointed out in Ethical Consideration 7-12 of Vermont's Code of Professional Responsibility: Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make.... [O]bviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent. Guardians ad litem under this rule act as parent-figures, whether or not they are, in fact, the parents of the ward. They ensure that the child or ward understands his or her choices, if capable of understanding, and that the child or ward makes the best choices possible. They assist the child or ward in working with the lawyer, and in some situations (described in subdivision (d)(4)) they in effect become the client. Under prior practice in some courts, guardians ad litem assisted the lawyers in finding and developing evidence. This rendered them subject to call as witnesses. A guardian ad litem cannot function as a ward's advisor from the witness stand. Moreover, under cross-examination the guardian ad litem may be called upon to disclose information which the ward communicated under an expectation of privacy. See new Vermont Rule of Evidence 412, making such statements generally inadmissible. The rule therefore strives to separate the role of guardians ad litem from that of investigators or detectives. When a guardian ad litem learns of facts about which he or she is competent to testify, and only when there is a strong need for that evidence to be produced, the guardian ad litem may be called as a witness. See subdivision (e)(4) of the rule. An example of a situation in which testimony would be proper would be when a guardian ad litem, in visiting a child at home, witnesses an unmistakable act of child abuse for which there are no other witnesses. The court, in its discretion, may appoint a replacement for a guardian ad litem who is called as a witness. See the concluding sentence of subdivision (e)(4). Attorneys are bound by D.R. 7-106(C), which prohibits them from making in-court comments that are unsupported by admissible evidence. In the day-to-day functioning of the adversary system, this can be a very difficult stricture for lawyers to meet. But compliance is essential if the adversary system is to produce just results. See Ethical Considerations 7-19, 7-20, 7-24 and 7-25. For the same reason, it is important that guardians ad litem refrain from asking the family court to base its decisions upon factual allegations not supported by evidence. When guardians ad litem are asked to serve also as investigators, this limit becomes difficult if not impossible for guardians ad litem to recognize and respect. The rule calls upon the court, lawyers and guardians ad litem to respect this fundamental protection of fairness in two ways. First, it draws a line between the role of guardian ad litem and that of investigator, in subdivision (e)(4), discussed above. See also Family Court Rule 5 (authorizing appointment of persons to perform home studies) and Reporter's Notes to Rule 5 (distinguishing investigator's role from that of guardian ad litem). Second, it specifies in subdivision (e)(3) that a guardian ad litem's statements to the court must be based upon evidence which is in the record except as expressly provided. The two exceptions are detention and disposition hearings under the Juvenile Procedure Act. These particular proceedings are not bound by the evidence rules. Detention hearings are emergency hearings which result in orders of limited duration; of necessity the procedures must be informal. Disposition hearings rely heavily on prehearing disclosure to avoid unfairness. See subdivision (e)(5) of this rule, and Family Court Rules 1(h) and 2(g). Inevitably situations will arise in which a guardian ad litem believes that important information should be presented to the court but is not in evidence. This may be because of inadequate preparation by the ward's attorney, failure of communication between the guardian ad litem and the attorney, or a number of other reasons. These rules do not contemplate transformation of the guardian ad litem into a witness at this juncture in order to place the missing evidence into the record. The duty of the guardian ad litem in this situation is to voice his or her concerns, first to the attorney and then to the court if the concerns have not been addressed. The court possesses the authority to inquire into the matter, and, where appropriate, to continue the proceedings so that the additional information can be the subject of discovery or trial testimony. The court has the authority under Vermont Rule of Evidence 614 to call any witness on its own motion or on the suggestion of a party, including the guardian ad litem. Subdivision (e)(2) sets forth the general duties of a guardian ad litem. These include meeting with the ward and the ward's attorney, reading all the pertinent pleadings and reports, discussing the ward's options with the attorney and the ward, and assisting the attorney in advising the ward. Subdivision (e)(3) defines the guardian ad litem's courtroom role. For the reasons discussed above, the rule generally limits the guardian ad litem to statements which are based upon the record. However, no statements of opinion whatsoever are proper at any contested merits hearing under the Juvenile Procedure Act. At these trials on the merits the issues are whether the state has met its burden of proving neglect, unmanageability, abuse or delinquency. These are not issues upon which a guardian ad litem's opinion may be helpful. The only proper expressions of opinion are those of the parties' attorneys, applying the relevant law to the facts, subject to DR 7-106. Subdivision (e)(3) provides, however, that at any hearing the court may inquire of the guardian ad litem whether the guardian ad litem is satisfied with the representation of the ward by the attorney, including but not limited to the presentation of evidence made by the ward's attorney. As already noted, this opportunity may lead the court to continue the proceedings so that additional information may be developed. Subdivision (e)(4) is discussed at length above. Subdivision (e)(5) recognizes the practice, in some courts, of utilizing reports prepared by guardians ad litem. The rule allows but discourages this practice, by permitting submission of such reports only by agreement of the parties or pursuant to the Vermont Rules of Evidence and paragraph (4) of this subdivision. Paragraph (4) precludes guardians ad litem from testifying as witnesses except in accordance with narrowly drawn criteria. Subdivision (f) requires that all proceedings under this rule be recorded. It is similar to V.R.Cr.P. 11(g).