GAL -holds the privilege for children who have been removed from their parents’ custody and whose custody has been transferred to the Department of Human Services (DHS).
In the past, the DHS caseworker was the individual who held the privilege for children in the custody of DHS, so that the caseworker, not the children’s parents, had the authority to consent to treatment or to authorize the release of treatment information. In its decision, the Colorado Supreme Court noted that in every D&N case, the court is required to appoint a GAL for the parties’ children.
The role of the GAL in a D&N case is to represent the family’s children and to make recommendations to the court concerning their best interests. In ruling that the GAL holds the privilege for children involved in a D&N case who are in the custody of DHS, the supreme court specifically ordered that the GAL is the individual best situated to make decisions concerning release of the children’s treatment information. As the privilege holder for children, it is the GAL who now has the authority to select treatment providers for children in the custody of DHS, not the caseworker. So, the GAL would need to sign the Client Disclosure Statement for treatment.
If a GAL in a D&N case sends a signed ROI form to you seeking treatment records from your child client, you should provide the same information in response that you would ordinarily provide to a parent who is requesting a child’s treatment record: a treatment summary. The reason for this is that most GALs will share any treatment records with attorneys for other parties in the D&N case, which may foreseeably result in harm to the child.
Keep in mind that if you are providing services to children involved in a D&N case, possibly under a contract with DHS, and if you are subpoenaed to testify in court at a hearing to determine an appropriate treatment plan for family members, to determine if parental rights should be terminated, or to determine an appropriate placement for the children, you will need the consent of the GAL/privilege holder, in writing, in order to testify and disclose treatment information at the hearing.
To clarify, this ruling by the Colorado Supreme Court only applies to D&N cases where children have been removed from parents’ custody and where custody has been transferred to DHS. It does not apply to divorce or custody actions in which the court may have appointed a GAL or a Child Legal Representative (CLR).