Report Title:

Children; Guardians Ad Litem.

Description:

Requires guardians ad litem to undergo background check and drug testing; requires the judiciary to establish a system to monitor and evaluate the performance of guardians ad litem to ensure accountability; requires the auditor to perform a management and performance audit of the judiciary's guardian ad litem program.

HOUSE OF REPRESENTATIVES

H.B. NO.

1813

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO FAMILY COURT.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 587-34, Hawaii Revised Statutes, is amended to read as follows:

"587-34 Guardian ad litem; court appointed counsel. (a) The court shall appoint a guardian ad litem for the child to serve throughout the pendency of the child protective proceedings under this chapter. The court may appoint additional counsel for the child pursuant to subsection (c) or independent counsel for any other party if the party is an indigent, counsel is necessary to protect the party's interests adequately, and the interests are not represented adequately by another party who is represented by counsel.

(b) A guardian ad litem shall:

(1) Be allowed access to the child by the caretakers of the child whether caretakers are individuals, authorized agencies, or health care providers;

(2) Have the authority to inspect and receive copies of any records, notes, and electronic recordings concerning the child that are relevant to the proceedings filed under this chapter without the consent of the child or individuals and authorized agencies who have control of the child; and

(3) Be given notice of all hearings and proceedings, civil or criminal, including, but not limited to, grand juries, involving the child and shall protect the best interests of the child therein, unless otherwise ordered by the court.

(c) A guardian ad litem appointed pursuant to subsection (a) shall report to the court and all parties in writing at six month intervals, or as is otherwise ordered by the court, regarding such guardian ad litem's activities on behalf of the child and recommendations concerning the manner in which the court should proceed in the best interests of the child; provided that such guardian ad litem shall make face to face contact with the child in the child's family or foster home at least once every three months. A guardian ad litem shall inform the court of the child's perceived interests if they differ from those being advocated by the child's guardian ad litem. If the child and the child's guardian ad litem are not in agreement, the court shall evaluate the necessity for appointing special counsel for the child to serve as the child's legal advocate concerning such issues and during such proceedings as the court deems to be in the best interests of the child.

(d) When the court determines, after such hearing as the court deems to be appropriate, that a party is incapable of comprehending the legal significance of the issues or the nature of the child protective proceedings, the court may appoint a guardian ad litem to represent the interests of that party; provided that a guardian ad litem appointed pursuant to this section shall investigate and report to the court in writing at six month intervals, or as is otherwise ordered by the court, regarding the current status of the party's disability, including, but not limited to, a recommendation as to available treatment, if any, for the disability and a recommendation concerning the manner in which the court should proceed in order to best protect the interests of the party in conjunction with the court's determination as to the best interests of the child.

(e) A guardian ad litem or counsel appointed pursuant to this section for the child or other party may be paid for by the court, unless the party for whom counsel is appointed has an independent estate sufficient to pay such costs. The court may order the appropriate parties to pay or reimburse the costs and fees of the guardian ad litem and other counsel appointed for the child.

(f) No person shall be appointed guardian ad litem under this section until the person has first been subjected to a criminal history record check and found to be free of illegal drugs in a test conducted in compliance with chapter 329B. Thereafter, a person may be appointed guardian ad litem for a period of one year without being retested, except that the person shall be subject to random drug testing during that period. For purposes of this subsection, "illegal drugs" means any substance defined in chapters 329 or 712 for which the person does not possess a valid prescription. The department of human services shall adopt rules pursuant to chapter 91 necessary for the purposes of this section.

(g) The judiciary shall establish a system to monitor and evaluate the performance of guardians ad litem to ensure accountability in performance of the duties to which they are appointed pursuant to this section."

SECTION 2. The auditor shall conduct a management and financial audit of all appointments of guardians ad litem made by the judiciary in child protective proceedings conducted pursuant to chapter 587, Hawaii Revised Statutes, to determine if the judiciary and its guardians ad litem are in compliance with all relevant programmatic and financial requirements. The audit shall be conducted within one year of July 1, 2004, and shall include but not be limited to a review of the following:

(1) The responsibilities, services, and activities of guardians ad litem;

(2) The propriety of expenditures;

(3) Compliance by all guardians ad litem with any laws and rules that may be in effect;

(4) The management and oversight of guardians ad litem by the judiciary; and

(5) Any additional audit issues that the auditor deems appropriate.

The judiciary and any person receiving state funds for service performed as a guardian ad litem shall fully cooperate with and provide assistance to the auditor as needed with respect to its audit and shall respond promptly to the auditor's requests in conducting this audit, including providing records and other information requested in the course of the audit.

The auditor shall submit its findings and recommendations to the legislature no later than twenty days before the convening of the regular session of 2005.

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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