Senate Bill 2826

(As Passed the Senate)

AN ACT TO AMEND SECTIONS 43-21-121 AND 9-5-89, MISSISSIPPI CODE OF 1972, TO CLARIFY THE AUTHORITY OF THE YOUTH AND CHANCERY COURTS TO APPOINT A LAYPERSON SPECIAL ADVOCATE AND TO SET FORTH MINIMUM QUALIFICATIONS FOR A PERSON TO SERVE IN THAT CAPACITY; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 43-21-121, Mississippi Code of 1972, is amended as follows:

43-21-121. (1) The youth court shall appoint a guardian ad litem for the child:

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

(b) When the youth court cannot acquire personal jurisdiction over a parent, a guardian or a custodian;

(d) 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;

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

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

(2) The guardian ad litem shall be appointed by the court when custody is ordered or at the first judicial hearing regarding the case, whichever occurs first.

(3) In addition to all other duties required by law, a guardian ad litem shall have the duty to protect the interest of a child for whom he has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child's best interest; copies of all reports shall be provided to all parties and representatives of parties. The guardian ad litem is not an adversary party and the court shall insure that guardians ad litem perform their duties properly and in the best interest of their wards. The guardian ad litem shall be a competent person who has no adverse interest to the minor. The court shall insure that the guardian ad litem is adequately instructed on the proper performance of his duties.

(4) The court may appoint either a suitable attorney or a suitable layman as guardian ad litem. In cases where the court appoints a layman as guardian ad litem, the court shall also appoint an attorney to represent the child. From and after January 1, 1999, in order to be eligible for an appointment as a guardian ad litem, an attorney or layperson must have received child protection and juvenile justice training provided by or approved by the Mississippi Judicial College within the year immediately preceding the appointment. The Mississippi Judicial College shall determine the amount of child protection and juvenile justice training which shall be satisfactory to fulfill the requirements of this section. The Administrative Office of Courts shall maintain a roll of all attorneys and laymen eligible to be appointed as a guardian ad litem under this section and shall enforce the provisions of this subsection.

(5) Upon appointment of a guardian ad litem, the youth court shall continue any pending proceedings for a reasonable time to allow the guardian ad litem to familiarize himself with the matter, consult with counsel and prepare his participation in the cause.

(6) Upon order of the youth court, the guardian ad litem shall be paid a reasonable fee as determined by the youth court judge or referee out of the county general fund as provided under Section 43-21-123. To be eligible for such fee, the guardian ad litem shall submit an accounting of the time spent in performance of his duties to the court.

(7) The court, in its sound discretion and at any time, may appoint a volunteer trained layperson to assist children subject to the provisions of this section in addition to the appointment of a guardian ad litem.

(8) Any guardian ad litem or volunteer trained layperson appointed by any court shall be presumed to be acting in good faith, and in so doing, shall be immune from civil liability while acting, within the scope of the appointment, except for gross negligence, intentional misconduct, or reckless, willful, or wanton misconduct.

SECTION 2. Section 9-5-89, Mississippi Code of 1972, is amended as follows:

9-5-89. (1) The court may appoint a guardian ad litem to any infant or defendant of unsound mind, and allow him suitable compensation payable out of the estate of such party, but the appointment shall not be made except when the court shall consider it necessary for the protection of the interest of such defendant; and a decree or judgment of any court shall not be void or erroneous because of the failure to have a guardian ad litem.

(2) The court, in its sound discretion and at any time, may appoint a volunteer trained layperson as a special advocate for any infant or defendant of unsound mind. This appointment may be in addition to the appointment of a guardian ad litem, but is not contingent on the appointment of a guardian ad litem.

(a) A special advocate appointed under this section shall:

(i) Be at least twenty-one (21) years of age; and

(ii) Be trained to fulfill the role of a special advocate as follows:

1. Meet the qualifications of the National Court Appointed Special Advocates (CASA) program; or

2. Be a licensed social worker; or

3. Have received child protection and juvenile justice training provided by or approved by the Mississippi Judicial College within the year immediately preceding appointment.

(3) Following appointment by the court, the guardian ad litem and special advocate shall have powers as authorized by the court, and shall be responsible for any duties prescribed thereby.

(4) Any guardian ad litem or special advocate appointed by the court shall be presumed to be acting in good faith, and in so doing, shall be immune from civil liability while acting within the scope of the appointment, except for gross negligence, intentional misconduct, or reckless, willful or wanton misconduct.

(5) All records and information reviewed under this section shall be confidential and only used by the guardian ad litem or special advocate in the performance of his or her duties.

SECTION 3. This act shall take effect and be in force from and after July 1, 2011.