E.  Guardian ad Litem

C.R.S. § 19-1-111(1) and (3)
C.R.S. § 19-3-203(1)
In D&N cases, the court must appoint the child a guardian ad litem (GAL).

C.R.S. § 19-1-105(2)
C.R.S. § 19-4-110
In truancy or paternity and support cases, the court may appoint a GAL. 
People v. Gabriesheski,_ P.3d _ (Colo. App., Oct. 16, 2008), cert. granted.
The GAL represents the child’s best interests. Communications made by a child to a GAL are privileged.



1.  Role of the GAL

C.R.S. § 19-3-203(3)
In D&N cases, the court should appoint a GAL when the petition is filed. For good cause, the court may appoint a GAL prior to filing the petition, such as to ensure a proper court-ordered investigation.

People in the Interest of R.E., 729 P.2d 1032 (Colo. App. 1986)
A GAL may not file a D&N petition, but DHS may not withdraw the petition before adjudication without the agreement of the GAL. 

People in the Interest of M.N., 950 P.2d 674 (Colo. App. 1997)
The GAL may file and prosecute a motion to terminate the parent-child relationship.
C.R.S. § 19-3-203(2)
In D&N cases, the GAL is entitled to all reports. This includes examinations of the child and reports of anyone alleged to have abused or neglected the child. The caseworker must keep the GAL informed of any significant developments, especially between court hearings.

C.R.S. § 19-3-602(3)
The GAL shall have the right to participate as a party in all cases (except delinquency cases). The appointment continues until the court’s jurisdiction ends. There is a preference for continuing with the same GAL throughout the case, including at termination of the parent-child legal relationship. 

C.R.S. § 19-1-111(4); Reference
If a child is freed for adoption, the GAL continues until an adoption is finalized.



2.  Duties of the GAL

C.R.S. § 19-1-103(59)
C.R.S. § 13-91-101 et seq.
A GAL must be a licensed Colorado attorney and should have prior juvenile law experience. 

C.R.S. § 19-1-105(2)
The court may appoint for the child both a GAL and an attorney if it is in the child’s best interests.

C.J.D. 04-06
A guardian ad litem should serve the best interests of the child by observing the child and gathering information. The GAL should speak with the parents and others in an independent investigation, and should see the child on a regular basis. The GAL is required to work with all parties to achieve the child’s best interests.

In accomplishing this task, collaboration with counsel, whether county attorney or counsel for parents, is important.  Attorneys in the case play an essential role in either stifling or promoting change that will be beneficial for children and families.

C.R.S. § 19-1-111(5) and 111.5
The guardian ad litem must cooperate with the court-appointed special advocate (CASA). The court may direct the manner in which the GAL and CASA volunteer collaborate.

C.R.S. § 19-3-203(3)
C.R.S. § 13-91-105
People in the Interest of M.W., 796 P.2d 66 (Colo. App. 1990)
C.J.D. 04-6
The GAL must follow the guidelines set forth in the federal Department of Health and Human Services “Adoption 2000” guidelines, the Colorado Bar Association guidelines for guardians ad litem, and Chief Justice Directives.  GALs should perform the following tasks to the degree necessary to represent the child, including:
  • Investigate the facts of the case.
  • Talk with or observe the child.
  • Questions witnesses at hearings or trials.
  • Introduce witnesses.
  • Make recommendations to the court about the child’s welfare, taking into account the developmental needs of the child.
  • Insure reasonable efforts are made if consistent with the child’s safety.
  • Pursue appeals.
  • Assure that reasonable efforts are being made to prevent unnecessary placement of the child out of the home;
  • Facilitate reunification of the child with the child’s family; and
  • If that is not possible, find another safe and permanent living arrangement for the child.
C.R.S. § 13-91-105(1)(a)
3.  Oversight of the GAL

Judicial districts must develop local groups to oversee the provision of guardian ad litem services. These groups do not replace the role of the Office of Disciplinary Counsel, but must ensure there are sufficient qualified guardians ad litem who have been adequately trained in the unique role of the child’s representative. These groups also receive complaints from the public about guardians ad litem.



4.  Cross-Examining the GAL

People in the Interest of J.E.B., 854 P.2d 1372 (Colo. App. 1993)
Can parties cross-examine a GAL? If a GAL makes recommendations to the court based on an independent investigation, the facts of which have not otherwise been introduced into evidence, the GAL may be cross-examined as a witness. 

People in the Interest of M.W., 796 P.2d 66 (Colo. App. 1990)
However, the GAL is not required to make such a recommendation. If the GAL pursued the child’s goals through legal advocacy based on evidence before the court, the GAL may not be cross-examined.



5.  GAL for Parents

C.R.C.P. 17(c)
A separate GAL is mandatory for minor parents who are not already represented by an attorney, guardian, or conservator. 

C.R.S. § 19-3-602(3)
In a termination proceeding, the court must always appoint a GAL for a minor parent.

C.R.S. § 19-1-111(2)(c)
The court may also appoint a GAL for a parent, guardian, legal custodian, custodian, or person to whom parental responsibilities have been allocated, stepparent or spousal equivalent and who lacks competency due to mental illness or developmental disability as determined by a court of competent jurisdiction. The test is whether the person is mentally competent to participate effectively in the legal proceeding.

C.R.S. § 27-10-102(8.5)
A “person with a mental illness” is one with a substantial disorder of the cognitive, volitional or emotional processes that grossly impairs judgment or capacity to recognize reality or to control behavior. 

C.R.S. § 27-10.5-102(11)(a)
A “developmental disability” is a disability that arises before age 22, attributable to mental retardation or other neurological conditions, that substantially handicaps an individual and impairs general intellectual functioning or adaptive behavior.

People in the Interest of M.M., 726 P.2d 1108 (Colo. 1986)
In M.M., the court recommended appointing a GAL if the parent cannot understand the nature or significance of the proceeding or cannot make critical decisions. A GAL is also necessary for parents who lack the intellectual capacity to communicate with an attorney or who cannot weigh the attorney’s advice in their own interests.



There are potential due process issues that bear on whether or not to appoint a GAL for a parent. It is best to appoint a GAL where:
  • The parent is a minor;
  • A prior finding of incompetency has been made;
  • Parties stipulate to the appointment; and/or
  • The parent has notice and an opportunity to be heard on the issue of competency.
People in the Interest of L.A.C., 97 P.3d 363 (Colo. App. 2004)
In L.A.C., the Court of Appeals affirmed the trial court’s refusal to appoint a GAL for the mother, who had limited intellectual capacity.