Miss. R. Youth Ct. Prac. 13

As amended through October 22, 2024

Rule 13 - APPOINTMENT OF GUARDIAN AD LITEM

(a) Appointment of guardian ad litem. The court shall appoint a guardian ad litem for the child when custody is ordered or at the first judicial hearing regarding the case, whichever occurs first,

(1) when a child has no parent, guardian or custodian;

(2) when the court cannot acquire personal jurisdiction over a parent, a guardian or a custodian;

(3) when the parent is a minor or a person of unsound mind;

(4) when the parent is indifferent to the interest of the child or if the interests of the child and the parent, considered in the context of the cause, appear to conflict;

(5) in every case involving an abused or neglected child which results in a judicial proceeding; or

(6) in any other instance where the court finds appointment of a guardian ad litem to be in the best interest of the child.

Upon appointment of a guardian ad litem, the court shall continue any pending proceedings for a reasonable time to allow the guardian ad litem to become familiar with the matter, consult with counsel and prepare for the cause.

(b) Qualifications of guardian ad litem. The court shall only appoint as guardian ad litem a competent person who has no adverse interest to the minor and who has received, in accordance with section 43-21-121(4) of the Mississippi Code, the requisite child protection and juvenile justice training provided by or approved by the Mississippi Judicial College within the year immediately preceding such appointment.

(c) Duties of guardian ad litem. The guardian ad litem, in addition to all other duties required by law, shall:

(1) protect the interest of a child for whom he/she has been appointed guardian ad litem; and

(2) investigate, make recommendations to the court or enter reports as necessary to hold paramount the child's best interest.

The court shall insure that guardians ad litem perform their duties properly and in the best interest of their wards.

When conducting an investigation under this rule, the guardian ad litem shall inform the child and the parent(s), guardian(s), or custodian(s) that the role of the guardian ad litem is to act as an arm of the court in protecting the interest of the child, and not as the parties' attorney, and that any statements made to the guardian ad litem affecting the health, safety, or welfare of the child will be reported to the court.

(d) Reasonable fees. The guardian ad litem shall be paid a fee in the performance of duties pursuant to section 43-21-121(6) of the Mississippi Code. The court may order financially ableparents to pay for the reasonable fees of the guardian ad litem, or a portion thereof, pursuant to section 43-21-619 of the Mississippi Code.

(e) Appointment of volunteer trained layperson to assist children. The court may appoint a volunteer trained layperson to assist children, in addition to the appointment of a guardian ad litem, pursuant to section 43-21-121(7) of the Mississippi Code.

(f) Appointment of an attorney if conflict exists. If there is a conflict between the child's preferences and the guardian ad litem's recommendation, the court shall retain the guardian ad litem to represent the best interest of the child and appoint an attorney to represent the child's preferences. The court shall then continue the proceedings for a reasonable time to allow the newly appointed attorney to prepare for the cause.

(g) Appointment of attorney in delinquency matters. In delinquency matters, if a guardian ad litem is appointed, the guardian ad litem and the legal defense counsel for the child cannot be the same person.

Comments & Procedures

Rule 13(a).

This provision comports with the statutory procedures. See Miss. Code Ann. § 43-21-121(1), (4), (5) (2008).

The appointment of a guardian ad litem pursuant to this rule is a mandatory obligation. See Miss. Code Ann. § 43-21-121(1), -(2) (2008); In re R.D., 658 So. 2d 1378, 1385 (Miss. 1995) ("Whether requested or not, judges have the obligation to appoint a guardian ad litem to represent every minor alleged to be abused or neglected as the statute requires.").

Rule 13(b).

This provision comports with the statutory procedures. See Miss. Code Ann. § 43-21-121(3), -(4) (2008). The Mississippi Judicial College presently requires six (6) hours of child protection and guardian ad litem training through an educational program approved by the Director of the Mississippi Judicial College for any appointment within 365 days thereof.

Rule 13(c).

This provision comports with the statutory procedures. See Miss. Code Ann. § 43-21-121(3) (2008).

The guardian ad litem has the responsibility to fully protect the interests of the child. See In re D.K.L., 652 So. 2d 184, 191 (Miss. 1995). Such requires being prepared to testify as to the present health, education, estate and general welfare of the child, which, of necessity, requires interviewing the minor children, their current custodians, and prospective parents, if any. See M.J.S.H.S. v. Yalobusha County Dep't of Human Servs., 782 So. 2d 737, 741 (Miss. 2001). Additionally, the guardian ad litem must submit a written report to the court during the hearing, or testify and thereby become available for cross-examination by the natural parent. See D.J.L. v. Bolivar County Dep't of Human Servs., 824 So. 2d 617, 623 (Miss. 2002). The court should include in its findings of facts and conclusions of law a summary of the guardian ad litem's recommendations, whether it agreesor disagrees with the guardian ad litem, and why. In re L.D.M., 848 So. 2d 181, 183 (Miss. 2003); S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss. 2000).

Recommendations or reports by the guardian ad !item pursuant to this provision shall not constitute an ex parte communication.

Rule 13(d).

This provision comports with the statutory procedures. See Miss. Code Ann. § 43-21-121(6) (2008). It also allows the court, pursuant to section 43-21-619 of the Mississippi Code, to order financially able parents to pay for the reasonable fees awarded the guardian ad litem or a portion thereof. Such is consistent with the philosophy expressed in section 43-21-103 of the Mississippi Code. Parental accountability is a key element in achieving a child's productive citizenry.

Factors to be weighed when considering the proper amount of guardian ad litem fees to be awarded include:

(1) the relative ability of the parties;

(2) the skill and standing of the attorney employed;

(3) the nature of the case and novelty and difficulty of the questions at issue;

(4) the degree of responsibility involved in the management of the case;

(5) the time and labor required;

(6) the usual and customary charge in the community; and

(7) preclusion of other employment by the attorney due to the acceptance of the case. See In re L.D.M., 872 So. 2d 655, 657 (Miss. 2004).

Rule 13(e).

This provision comports with the statutory procedures. See Miss. Code Ann. § 43-21-121(7) (2008).

Rule 13(f).

This provision addresses the situation where the child opposes the recommendation of the guardian ad litem who is also an attorney. Since a guardian ad litem may not simultaneously represent the best interest of the child and advocate the child's preferences, the court must appoint an attorney to represent the child's preferences while retaining the appointed guardian ad litem to represent the best interest of the child.

Rule 13(g).

This provision comports with the statutory procedures. See Miss. Code Ann. § 43-21-201(1) (2008).

Miss. R. Youth Ct. Prac. 13

The Uniform Rules of Youth Court Practice were revised by order entered 7/17/2012; amended effective 12/1/2016.