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

May 14, 2021 | Family Law, Vermont

(a) Applicability. This rule applies to all proceedings under 33 V.S.A. Chapters 51, 52 and 53 (Juvenile Judicial Proceedings) which are held within the family court and to any proceeding under Article 1 of Subchapter 2 of 14 V.S.A. Chapter 111 (Guardians of Minors) in which the probate court, in its discretion, seeks to appoint a guardian ad litem for a minor; and to any proceeding under 18 V.S.A. Chapters 179 and 181 (Involuntary Treatment), and Chapter 206 (Care for Mentally Retarded Persons), involving a minor.
(b) Appointment of Counsel. In proceedings under 33 V.S.A. Chapters 51, 52 and 53, the court shall assign counsel pursuant to Administrative Order No. 32 to represent the child unless counsel has been retained by that person.
(c) Appointment of Guardian Ad Litem.

(1)Proceedings Under 33 V.S.A. Chapters 51, 52 and 53. In all proceedings under Chapters 51, 52 and 53 of Title 33, appointment of a guardian ad litem for the child shall be governed by Family Court Rules 1, 2 and 3.
(2)Guardians of Minors. In proceedings under Article 1 of Subchapter 2 of 14 V.S.A. Chapter 111, the probate court, in the exercise of its discretion, may appoint a guardian ad litem for a minor upon notice to the minor, with opportunity to request a hearing.

Hearings on these motions shall be set expeditiously, and sufficiently in advance of the hearing on the merits so as to allow the guardian ad litem adequate time to prepare for the hearing on the merits. Civil Rule 78(b) shall not apply to these motions.

When served upon the proposed ward, the motion and affidavit must include or be accompanied by 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.

(3)Selection, Replacement, Discharge. The guardian ad litem shall be selected and replaced as appropriate by the court in its discretion.
(d) Settlements, Compromises and Waivers.

(1) In General. In any proceeding in which a guardian ad litem has been appointed pursuant to the Family Court Rules, the court shall review all settlements, compromises, waivers of evidentiary, statutory, constitutional or common-law privileges, stipulations and other decisions affecting the substantial rights or interests of the ward.
(2) Disagreements Between Ward and Guardian Ad Litem. When a ward and a ward’s guardian ad litem disagree as to a matter governed by subdivision (d)(1) of this rule, the attorney assigned to represent the ward shall promptly and fully inform the court of the position of the guardian ad litem. The guardian ad litem also shall be afforded the right to be heard but shall not disclose privileged information or information that has not been admitted into evidence. The court may, in its discretion, appoint additional counsel for the guardian ad litem.
(3) Waivers of Constitutional and Other Important Rights. 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 the proposed waiver or admission unless the court determines, after opportunity to be heard, each of the following:

(A) that there is a factual and legal basis for the waiver or admission;
(B) that the attorney has investigated the relevant facts and law, consulted with the client and guardian ad litem, and the guardian ad litem has consulted with the ward;
(C) that the waiver or admission is in the best interest of the ward; and
(D) that the waiver or admission is being entered into knowingly and voluntarily by the ward and also by the guardian ad litem, except as set forth in (4) below.
(4)Approval Without Ward’s Consent of Constitutional or Other Important Waivers. A waiver or admission listed in subdivision (d)(3) of this rule may be approved of with the consent of the guardian ad litem but without the consent of the ward if the ward, because of mental or emotional disability, is unable to understand the nature and consequences of the waiver or admission or is unable to communicate with respect to the waiver or admission. A person who has not attained the age of thirteen shall be rebuttably presumed to be incapable of understanding the nature and consequences of the waiver or admission and of communicating with respect to the waiver or admission; a person thirteen years old or older shall be rebuttably presumed to be capable. The rebuttable presumptions shall have the effect set forth by Vermont Rule of Evidence 301 and shall also allocate the burden of persuasion. Notwithstanding this subdivision, in all cases in which it is alleged that a person had committed a crime or delinquent act, that person’s knowing and voluntary consent shall be required with respect to the waiver or admission.
(e) Role of Guardian Ad Litem.

(1)In General. The guardian ad litem shall act as an independent parental advisor and advocate whose goal shall be to safeguard the ward’s best interests and rights.
(2)Duties Generally. Each guardian ad litem shall meet with the ward, the ward’s attorney, and others who may be necessary for an understanding of the issues in the proceeding. The guardian ad litem shall be familiar with all pertinent pleadings, reports, and other documents. The guardian ad litem shall discuss with the ward and the ward’s attorney all options which may be presented to the court, and shall assist the attorney in advising the ward regarding those options.
(3)Courtroom Role. The guardian ad litem shall not be asked for nor provide an opinion on the merits to the court at any contested merits hearings held under Chapters 52 and 53 of Title 33, Vermont Statutes Annotated. The guardian ad litem may, at a disposition or temporary care hearing held under Chapters 52 and 53, state his or her position or opinion and the reasons therefor. In any other proceeding governed by this rule, the guardian ad litem may, at any phase of the proceeding, state his or her position or opinion and the reasons therefor, which reasons shall be based upon the evidence which is in the record. At any hearing the court may inquire, subject to the provisions of this rule, 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. If the guardian ad litem at any time is not satisfied that the ward’s rights and interests are being effectively represented, the guardian ad litem shall so advise the court in open court, orally or in writing.
(4)Guardian Ad Litem as Witness. A guardian ad litem may be called as a witness only when that person’s testimony would be directly probative of the child’s best interest, and no other persons could be employed or subpoenaed to testify on the same subject matter. When a guardian ad litem is to be called as a witness, the court may appoint a new guardian ad litem.
(5)Reports Prepared by Guardians Ad Litem. If the guardian ad litem prepares a written report, it shall be submitted to the court only by agreement of the parties or pursuant to the Vermont Rules of Evidence and subject to paragraph (4) of this subdivision.
(f) Record of Proceedings. The court shall make a verbatim record of all proceedings under this rule.

Vt. R. Fam. Proc. 6

Added Aug. 22, 1991, eff. Nov. 1, 1991; amended Oct. 16, 1991, eff. Nov. 1, 1991; Aug. 29, 1995, eff. Dec. 1, 1995; Jan. 11, 1996, eff. Jan. 12, 1996; amended Dec. 17, 2008, eff. Jan. 1, 2009; Feb. 24, 2010, eff. April 26, 2010.

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.