The Role of the GAL in a Neglect and Abuse Case
January 21, 2015 § 1 Comment
Margaret Jones and David Brown had a daughter out of a non-marital relationship. They lived together for a time, and in 2012, David took the child, Christina, and left with her. A child-custody battle ensued in chancery court, with both parties charging abuse and neglect in their pleadings.
The chancellor appointed a guardian ad litem (GAL).
Margaret was not happy with the judge’s ruling, and she appealed. One issue she raised was the role assigned for the GAL by the chancellor. The COA affirmed in the case of Jones v. Brown, handed down January 6, 2015. Judge Fair, for the court, explained:
¶9. Because there were allegations of neglect, the chancellor appointed a guardian ad litem for Christina. The chancellor chose a law student from Mississippi College School of Law, Thujee Lhendup, who was admitted to limited practice under the supervision of Shirley Kennedy, a professor who is also a licensed attorney. Lhendup was assigned to investigate the allegations and make recommendations as to Christina’s best interest, as an arm of the court. The chancellor was very complimentary of Lhendup’s performance, describing him as exceptionally energetic and thorough. The record bears that out.
¶10. Margaret takes issue not with the guardian ad litem’s execution of his duties, but with the nature of his assignment. She contends that the chancellor was required to appoint a guardian ad litem to act as an attorney for Christina, not one who would investigate and make recommendations as an arm of the court. Margaret’s argument is based on the Mississippi Supreme Court’s decision in S.G. v. D.C., 13 So. 3d 269, 280-81 (¶47) (Miss. 2009), where the court discussed the importance of clearly defining the role of the guardian ad litem:
In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of the court – to investigate, find facts, and make an independent report to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem’s role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.
Margaret latches onto language from another case, In re R.D., 658 So. 2d 1378, 1384 (Miss. 1995), where the supreme court held minors had a due process right to “representation by” a guardian ad litem when abuse or neglect was alleged. See also Miss. Code Ann. § 93-5-23 (Rev. 2013); Miss. Code Ann. § 43-21-121 (Rev. 2009). From this Margaret argues that the chancery court was required to appoint a guardian ad litem to represent Christina as her attorney and not as an arm of the court.
¶11. This argument is erroneous and relies on cherry picking language from In re R.D. In fact, the court there repeatedly stated that (in the context of a termination of parental rights proceeding where abuse or neglect is at issue) the guardian ad litem had a duty to represent the child’s best interest. See id. at 1382-83, 1386. The court cited with approval cases outlining the role of a guardian ad litem as an arm of the court. See id. at 1383 (citing Short v. Short, 730 F. Supp. 1037, 1038 (D. Colo. 1990); Shainwald v. Shainwald, 395 S.E.2d 441, 444 (S.C. Ct. App. 1990)).
¶12. Moreover, the supreme court in S.G. v. D.C. made a point of emphasizing that prior dictates of that court had been confusing or ambiguous on the proper role of a guardian ad litem. The court urged chancellors to make it clear what was expected:
We find no fault with any of these diverse duties and responsibilities a chancellor might assign to a guardian ad litem in a particular case. However, we encourage chancellors to set forth clearly the reasons an appointment has been made and the role the guardian ad litem is expected to play in the proceedings. To avoid potential problems regarding confidential communications and other expectations, chancellors should make clear: (1) the relationship between the guardian ad litem and the children, incompetent, or other ward of the court; (2) the role the guardian ad litem will play in the trial; and (3) the expectations the trial judge has for the guardian ad litem. The role a chancellor expects a guardian ad litem to play should be set forth clearly in the written order of appointment. Doing so will make the guardian ad litem’s relationships and general responsibilities clear to each of the parties (including those wards old enough to comprehend), the attorneys, the court, and to the guardian ad litem.
S.G., 13 So. 3d at 281 (¶48). The Court also acknowledged that the chancellor must have discretion and flexibility in defining the guardian’s duties on a case-by-case basis:
Setting out such expectations should not permanently bind the court should needs change as the litigation progresses. Judges may revise these expectation by order as the need arises, so long as the guardian ad litem is not required to breach client confidences or other ethical duties by the change in responsibilities. Chancellors should be free to assign duties to a guardian ad litem as the needs of a particular case dictate, and the role of the guardian ad litem should at all times be clear.
Id. at (¶49).
¶13. Furthermore, in distinguishing between the two roles of a guardian ad litem, the S.G. court cited a case involving allegations of abuse or neglect as its example of an instance where the guardian ad litem should serve the role of investigator and arm of the court. See id. at (¶43) (citing S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1082 (¶¶15-17) (Miss. 2000)). The example where the guardian ad litem should act more strictly as the child’s fiduciary or attorney was a will contest in which the child was a beneficiary. Id. (citing In re Prine’s Estate, 208 So. 2d 187, 192 (Miss. 1968)). The court in S.G. also discussed potential concerns about confidentiality, but that was clearly not an issue in this case, as Christina was not old enough to meaningfully communicate with someone she believed was her attorney. See id. at 282 (¶¶53-54).
¶14. The record reflects that the guardian ad litem in this case was properly directed to act as an arm of the court in representing the best interest of the child, and he executed that duty faithfully. This issue is without merit.
A few take-aways:
- If you’re accepting appointment as a GAL, make sure the chancellor has clearly defined your role. Once you have a clear understanding, consider offering to draft the order yourself. Here is a link to a draft you might use or be able to adapt. I most often use the GAL as an arm of the court to investigate and make proposed findings; after all, the parents are the combatants, and I can’t be sure they are putting the best interest of the child first. But that’s not the only role a GAL might have. I have employed GAL’s to oversee visitation scheduling and to direct random drug screenings. That kind of flexibility in assigning a role is what the COA described in its holding. The delineation of duties in the order must be clear.
- Just because the GAL makes findings or proposed findings, that does not make them automatically admissible in evidence. As I have said here before, you should “Call every witness identified in the GAL report to establish the substantive facts that support the GAL’s recommendations, and, of course any other witnesses you feel that you need to call.”
- In my opinion, it’s a rare case that is appropriate for appointment of the GAL in the role of attorney, and should be limited to cases where appointment of an attorney is needed to protect the ward’s best interest. The Prine’s Estate case cited by the COA is a good example. I prefer the GAL to be independent, and to look behind the facts claimed by the parties.
- Another important point if you are GAL is to let your chancellor know about things affecting the course of the case. For instance, if you need more authority, or if your role changes, or if a party is obstructing, file something with the court. If it affects the rights of the parties, set it for hearing and let the judge decide. I always order the parties to pay a deposit toward the GAL’s fees; if either or both fail to do so, or if they do not cooperate, file a pleading asking the court to address the situation.
Tagged: guardian ad litem
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I agree with authorizing the GAL to “direct random drug screenings.” Timeliness in drug screenings is critical to attempt to ensure that a parent doesn’t defeat the drug screening by waiting to take the drug screening or by consuming “chemical cleaning” substances.
Some drug screening facilities will allow the purchase of urinalysis drug tests by someone authorized by a judge. These are the same tests used by the facility. I believe judges should consider specifically authorizing a GAL to administer random urinalysis drug screenings with specific instructions that if the parent is not satisfied with the results, the parent can seek another test from a facility approved by the judge.
This procedure works and I have found that if a parent fails an immediate drug screening performed by a GAL, most will then acknowledge the use of drugs.