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Child advocacy mandate moves toward judicial discretion

Unified Judicial System
This map, used as an exhibit at the House Judiciary Committee, shows availability of Court Appointed Special Advocates, or CASA, in South Dakota.

At the request of the Chief Justice, the House Judiciary Committee has voted to amend an unenforceable law.

Children removed from their homes because of alleged abuse or neglect are entitled to a special advocate in addition to their court-appointed attorney.

However, a court spokesman says those advocacy services are not available in all areas of the state, and not every abuse and neglect case requires them.

Greg Sattizahn is state court administrator with the Unified Judicial System. He told legislators in committee hearings that courts in the state have a backlog of hundreds of cases that don’t have access to a volunteer from Court Appointed Special Advocates, or CASA.

“In 2020, there were 605 children on the waiting list for CASA, to have a representative appointed to represent them; in 2021, that number was 564,” he said.

Under the law, if an advocate is not available, the court must appoint a guardian ad litem. But Sattizahn says that guardian is typically a lawyer, and the child already has one, paid for by the county. So the guardian is usually helpful only if the child wants an outcome to the case that the lawyer doesn’t feel is in the child’s best interests.

If the additional lawyer is appointed, Sattizahn said counties have to pay that tab as well.

House Bill 1110 changes the mandate to an option, leaving it up to judges to decide if a case needs to be delayed until a CASA volunteer can be found or if the additional expense of a guardian ad litem is necessary.

Rep. Ryan Cwach
SD Legislative Resource Council
Rep. Ryan Cwach

Representative Ryan Cwach was the lone House committee member voting against changing the law.

He said the bill before the committee handles the problem by making it go away, replacing the word “shall” with “may” to make advocacy optional rather than mandatory.

“There is a funding solution and I just think if we change it to ‘may,’ I mean, are the 13 of us going to commit to bringing a funding bill right away?” he asked.

Cwach said the advocacy should continue to be a mandate, with state money dedicated to making it possible.

House Bill 1110 now goes to the House floor for a vote of the entire chamber.

Rapid City freelancer Victoria L. Wicks has been producing news for SDPB since August 2007. She Retired from this position in March 2023.