Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, June 23, 2006

Case Law Development: Appointment of GAL for parent in dependency action requires notice and hearing

The California Court of Appeals holds that a trial court's appointment of a guardian ad litem for a parent in a dependency proceeding requires due process protections.  In this case, Mother's court appointed counsel had sought appointment of a GAL at a hearing for which Mother had not appeared.  The sole basis for the appointment was counsel's statement that appointment of a GAL would assist him in representing Mother.  Mother had not been given any notice that the attorney would be making this request and was provided no opportunity to contest the appointment.  At a later date in the dependency action, both the attorney and GAL informed the court that a GAL was no longer needed and the court excused the GAL.  The court of appeals found that the failure to provide notice and a hearing to Mother violated her right to due process.  The court noted that appointment of a GAL transfers significant parenting rights and requies either parental consent or a hearing at which  "the court or counsel must explain the purpose of a guardian ad litem, why counsel believes the appointment is necessary, and what authority the parent will cede to the guardian ad litem. The parent must be given the opportunity to respond. At a minimum, the court should make an inquiry sufficient to satisfy it that the parent is, or is not, competent; i.e., whether the parent understands the nature of the proceedings and can assist the attorney in protecting his/her rights."(citations omitted)

Nonetheless, the court found that appointment of a GAL without due process was not a structural error automatically requiring reversal.  In this case, the court found the error was thus harmless beyond a reasonable doubt, concluding that both counsel and the GAL protected Mother's rights throughout the process and that the outcome would not have changed.

In re Enrique G. (June 19, 2006)
Opinion on the web (last visited June 21, 2006 bgf)

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