Guardian ad Litem Hearsay
August 2, 2017 § 2 Comments
Too many lawyers in contested custody cases with a GAL relax when the GAL report is in their favor, choosing to put all (or most) of their eggs in the basket of the GAL report, and then resting. A recent case shows how and why that can be a big mistake.
In Ballard v. Ballard, decided May 25, 2017, the MSSC reversed the chancellor’s award of Candice Ballard’s children’s custody to their paternal grandparents, based on a finding that both she and the natural father were unfit. Justice Coleman’s opinion spells it out:
¶15. Candice takes issue with the chancellor’s disposition of custody due to the chancellor’s reliance upon hearsay. Specifically, Candice argues the chancery court relied upon the guardian ad litem’s reports–which consisted mostly of hearsay–and the guardian ad litem’s testimony–which was based in hearsay–as substantive evidence to establish her unfitness and trigger the family-violence presumption. To the extent that the chancellor relied on the hearsay contained in the guardian ad litem’s report, we agree.
¶16. First, the Court notes the chancery court’s failure to provide an Albright analysis. Parents enjoy–against third parties–a natural-parent presumption favoring an award of custody. In re Waites, 152 So. 3d 306, 311 (¶ 14) (Miss. 2014). Only a clear showing of abandonment, desertion, immoral conduct detrimental to the child, and/or unfitness can rebut the presumption. Id. at 311-12 (¶ 15). However, the inquiry does not end once the presumption is rebutted. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 431 (¶ 24) (Miss. 2009). “If the court finds one of [the] factors [that rebuts the natural parent presumption] has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors. Id. (emphasis added). In other words, a finding that the natural-parent presumption has been rebutted does not end the inquiry into custody without an Albright analysis. If, on remand, the chancery court finds that the natural-parent presumption has been rebutted, then the chancery court must go on to consider the Albright factors to determine custody in the best interest of the children. We note that, even if, upon
remand, the chancellor finds enough competent evidence to engage the family-violence presumption, the presumption is a rebuttable one. Miss. Code Ann. § 93-5-24(9)(a)(I) (Rev. 2013).
¶17. In any event, the chancery court erred in finding Candice to be unfit and applying the family-violence presumption. Candice argues the only “proof” presented at trial to establish her unfitness was inadmissible hearsay from the guardian ad litem. Similarly, Candice argues the chancery court relied on inadmissible hearsay to apply the family-violence presumption against her.
¶18. Candice is correct that the chancery court relied heavily on hearsay testimony in determining that she was unfit and that the family-violence presumption should be triggered. The chancery court’s analysis determining Candice’s unfitness focused primarily on the guardian ad litem’s report and testimony and on Candice’s evasive answers to questions at trial that indicated a “wariness to convey the truth.” The chancery court concluded: “Based on the evidence as stated above, i[.]e., [Candice] failing to take responsibility for her actions or lack thereof, and continuing to blame others for her mistakes, the [chancery c]ourt finds by clear and convincing evidence that her natural parent presumption has been rebutted due to her unfitness.” [Fn omitted] Additionally, in our review of the record, we could discern only one piece of nonhearsay testimony that indicated Candice had committed any act of family violence: when Marshall testified that Candice had beaten him with a lamp. Other evidence suggesting Candice had inflicted violence on Marshall came almost entirely from the guardian ad litem’s reports and the guardian ad litem’s testimony at trial, all of which consisted of the guardian ad litem’s third-party interviews. None of the persons interviewed by the guardian ad litem testified at trial except the parties and one of Candice’s daughters from a previous relationship. Despite a recommendation from the guardian ad litem in her supplemental report that the chancery court should not apply the family-violence presumption, the chancellor relied on the hearsay contained within her report to disagree with her recommendation and apply it. [Emphasis in bold supplied by me]
¶19. In McDonald v. McDonald, 39 So. 3d 868, 882 (¶ 47) (Miss. 2010), the Court addressed “whether the guardian ad litem acted beyond her authority by offering hearsay testimony without being qualified as an expert.” The appellant in McDonald argued the chancery court erred in allowing a guardian ad litem to testify as to statements relayed to the guardian ad litem by teachers at a school. Id. at 884 (¶ 53). The McDonald Court set forth the “proper role” of a guardian ad litem as follows:
[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the
information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation.
Recommendations of a guardian ad litem must never substitute for the duty of a chancellor. Id. at 883 (¶ 48) (citing S.G. v. D.C., 13 So. 3d 269, 282 (Miss. 2009)). During trial of the case, the chancellor had overruled the objection to hearsay, claiming courts in Mississippi have a “historical practice” of allowing guardians ad litem to offer hearsay testimony. Id. The majority opinion in McDonald disagreed with the chancellor’s view, holding, “We find that it was error for the chancellor to find that the rules of evidence did not apply in this adversarial proceeding.” Id. Considering the above-quoted language defining the importance and role of the guardian ad litem along with the admonition issued by the McDonald Court regarding reliance on hearsay, we conclude the following: The guardian ad litem plays an important role, and – as set forth above – chancellors must consider all of the information available to the guardian ad litem when considering whether to follow the
recommendation made. However, especially when a chancellor departs from the recommendation of the guardian ad litem, as happened here, the result reached by the chancellor must be supported by admissible, competent evidence rather than hearsay.
¶20. Presiding Justice Dickinson issued a specially concurring opinion in McDonald tailored to the issue of guardian ad litem testimony and hearsay. Id. at 887 (¶ 65) (Dickinson, P.J., specially concurring). His concurrence was joined by four other justices, giving the opinion precedential value. See Sweatt v. Murphy, 733 So. 2d 207, 209-210 (¶ 7) (Miss. 1999) (noting that when at least four justices vote in favor of another justice’s concurring opinion, the concurrence has “precedential value”). Addressing guardian ad litem hearsay, Presiding Justice Dickinson wrote, “Rule 1 of the Mississippi Rules of Evidence plainly says those rules apply in chancery court—and they include no exception for guardians ad litem.” Id. The concurrence continued: “Certainly I agree that guardians ad litem–properly appointed under Rule 706 and qualified as experts under Rule 703–may rely on hearsay in reaching their opinions. But hearsay used to support an expert’s opinion is quite different from hearsay admitted as substantive evidence.” Id. (¶ 68). In other words, “pure, rank, uncross-examined hearsay” by a guardian ad litem cannot be used as substantive evidence. Id. (¶ 68).
¶21. A dearth of Mississippi jurisprudence squarely addresses the issue of guardian ad litem hearsay being used as substantive evidence. However, as Presiding Justice Dickinson proclaimed in McDonald, our rules of evidence apply in chancery court; and the rules prohibit, subject to listed exceptions, the use of hearsay as substantive evidence. In view of the rule, the chancery court erred in relying on inadmissible hearsay to find Candice unfit and to invoke the family-violence presumption against Candice. Therefore, we reverse the chancery court’s disposition on custody of the three minor children and remand for further proceedings.
This case is a strong reminder that you must put non-hearsay evidence in the record that will support the chancellor’s findings. If the GAL reported statements by a schoolteacher about the child’s conduct, call the teacher as a witness. If the GAL referred to medical records, get the records with any interpretive testimony in the record. If neighbors witnessed something, put them on the stand to testify about it. That’s what the court was alluding to in the language I put in bold print above: It’s up to you to call the witnesses, to get the documents into evidence, and to do what is necessary to give the judge substantial evidence to support findings.
Remember that the GAL report has two major components: (1) a recitation of what the GAL learned from her investigation, which often includes hearsay; and (2) the GAL’s recommendations. It’s up to you to get the facts unearthed in the investigation into the record in the form of admissible evidence. If all the judge has is that GAL report, then that is all she will be able to say she relies on in making her ruling, and that is a recipe for reversal.
If you are on the side contrary to the GAL’s recommendations, remember that there must be a contemporaneous objection to the testimony. You are extremely unlikely to prevail if you complain for the first time on appeal that the GAL report was rife with hearsay and other objectionable evidence.
A previous post on Coming to Grips with McDonald is here.
Tagged: guardian ad litem hearsay
The Better Chancery Practice Blog 
In every case I have had where a GAL was appointed, the parties have agreed to the following provision in the Order Appointing GAL:
“The Court finds that the Guardian ad Litem may report to the Court in writing and testify in Court as to what would normally be deemed hearsay statements. The parties have agreed to allow the Guardian ad Litem to reply upon and report to the Court in writing or by testimony such statements so long as each party has advance notice of the intent to reply upon such hearsay statements for the truth of the matters asserted. Each party may call such person who made such hearsay statement as a witness if they have reason to believe that the Guardian ad Litem has misstated or misrepresented the statements made by such witness to the Guardian ad Litem.”
That is an ideal solution.