Section 1154. Duties of Guardian Ad Litem

A guardian ad litem shall:

1) Meet with the child as soon as possible following assignment pursuant to Rule 1151 and on a regular basis thereafter in a manner appropriate to the child’s age and maturity;

2) On a timely basis, be given access to relevant court and county agency records, reports of examination of the guardians or the child, and medical, psychological, and school records;

3) Participate in all proceedings, including hearings before masters, and administrative hearings and reviews to the degree necessary to adequately represent the child;

4) Conduct such further investigation necessary to ascertain the facts;

5) Interview potential witnesses, including the child’s guardians, caretakers, and foster parents, examine and cross-examine witnesses, and present witnesses and evidence necessary to protect the best interests of the child;

6) At the earliest possible date, be advised by the county agency having legal custody of the child of:

a) any plan to relocate the child or modify custody or visitation arrangements, including the reasons, prior to the relocation or change in custody or visitation; and

b) any proceeding, investigation, or hearing under the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq. or the Juvenile Act, 42 Pa.C.S. § 6301 et seq., directly affecting the child;

7) Make any specific recommendations to the court relating to the appropriateness and safety of the child’s placement and services necessary to address the child’s needs and safety, including the child’s educational, health care, and disability needs;

8) Explain the proceedings to the child to the extent appropriate given the child’s age, mental condition, and emotional condition; and

9) Advise the court of the child’s wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child’s wishes. When appropriate because of the age or mental and emotional condition of the child, determine to the fullest extent possible the wishes of the child and communicate this information to the court.

Comment

If there is a conflict of interest between the duties of the guardian ad litem pursuant to paragraphs (7) and (9), the guardian ad litem for the child may move the court for appointment as legal counsel and assignment of a separate guardian ad litem when, for example, the information that the guardian ad litem possesses gives rise to the conflict and can be used to the detriment of the child. If there is not a conflict of interest, the guardian ad litem represents the legal interests and best interests of the child at every stage of the proceedings. 42 Pa.C.S. § 6311(b). To the extent 42 Pa.C.S. § 6311(b)(9) is inconsistent with this rule, it is suspended. See Rules 1151 and 1800. See also Pa.R.P.C. 1.7 and 1.8.

‘‘Legal interests’’ denotes that an attorney is to express the child’s wishes to the court regardless of whether the attorney agrees with the child’s recommendation. ‘‘Best interests’’ denotes that a guardian ad litem is to express what the guardian ad litem believes is best for the child’s care, protection, safety, and wholesome physical and mental development regardless of whether the child agrees.

Pursuant to paragraph (7), the guardian ad litem is to make specific recommendations to the court regarding the appropriateness of the child’s placement, giving consideration to the proximity and appropriateness of the child’s school. See 42 Pa.C.S. § 6311(b)(7) and 42 U.S.C. § 675(1)(G). Inquiries into the child’s education should include the right to: 1) educational stability, including the right to remain in the same school regardless of a change in placement when in the child’s best interest and the right to immediate enrollment when a school change is in the child’s best interest, 42 U.S.C. § § 675(1)(G) and 11431 et seq.; 2) an educational decision maker pursuant to Rule 1147, 42 Pa.C.S. § 6301, 20 U.S.C. § 1439(a)(5), and 34 C.F.R. § 300.519; 3) an appropriate education, including any necessary special education, early intervention, or remedial services, 24 P. S. § § 13-1371 and 13-1372, 55 Pa. Code § 3130.87, and 20 U.S.C. § 1400 et seq.; 4) the educational services necessary to support the child’s transition to independent living, 42 Pa.C.S. § 6351 if a child is sixteen or older; and 5) a transition plan that addresses the child’s educational needs, 42 U.S.C. § 675(5)(H), if the child will age out of care in the next ninety days.

See In re S.J., 906 A.2d 547, 551 (Pa. Super. Ct. 2006) (citing In re Tameka M., 525 Pa. 348, 580 A.2d 750 (1990)), for issues addressing a child’s mental and moral welfare.

Pursuant to paragraph (7), the guardian ad litem is to make specific recommendations to the court regarding the appropriateness of the child’s placement, giving consideration to meeting the child’s needs concerning health care and disability. Inquiries into the child’s health should include the right of: 1) the child to receive timely and medically appropriate screenings and health care services, 55 Pa. Code § § 3700.51 and 3800.32, 42 U.S.C. § 1396d(r); and 2) a child with disabilities to receive necessary accommodations, 42 U.S.C. § 12132, 28 C.F.R. § 35.101 et seq., Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 and implementing regulations at 45 C.F.R. § 84.1 et seq.

The guardian ad litem may be appointed as the educational decision maker. If the guardian ad litem is not the educational decision maker, the guardian ad litem is to coordinate efforts and consult with the educational decision maker. See Rule 1147 for duties of the educational decision maker.

Official Note

Rule 1154 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011.

Committee Explanatory Reports:

Final Report explaining the amendments to Rule 1154 published with the Court’s Order at 41 Pa.B. 2413 (May 14, 2011).

The provisions of this Rule 1154 amended April 29, 2011, effective July 1, 2011, 41 Pa.B. 2413. Immediately preceding text appears at serial pages (342573) to (342574).