Limitations on Restricting the GAL

May 27, 2020 § Leave a comment

In divorce litigation between Sylvia and Mark Barber, the chancellor appointed a GAL to investigate Sylvia’s allegations that Mark had abused their children. After the GAL found the claims to be unsubstantiated, the chancellor granted Mark’s motion to limit the testimony of the GAL and to exclude the report from evidence. After the case was concluded, Sylvia appealed on several grounds, among them that the chancellor erred in excluding the GAL report and limiting the GAL’s testimony.

In Barber v. Barber, decided January 30, 2020, the MSSC reversed. Justice Kitchens wrote for the 6-3 majority:

¶23. Sylvia Barber argues that our courts require a court-appointed guardian ad litem either to testify at trial subject to cross-examination or to submit a written report and, if requested, to make recommendations. Because Culpepper was not allowed to testify or submit her report, she contends that the chancellor’s decision was clear error. [Fn 4]

[Fn 4] According to Sylvia Barber, “[a]lthough the [guardian ad litem] fulfilled all obligations, she was not allowed to testify, her report was completely stricken; and the Court strangely refused to receive any of her recommendations.”

¶24. This Court has recognized that “[t]he role to be played by a guardian ad litem is complex and not subject to a simple, universal definition.” S.G. v. D.C., 13 So. 3d 269, 280 (Miss. 2009). The Court clarified function of the guardian ad litem in S.G.:

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.

Id. at 280-81.

¶25. Thus, chancellors may assign duties to a guardian ad litem upon appointment. This Court “encourage[s] 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.” Id. at 281. This charge to

[s]et[] out such expectations should not permanently bind the court should needs change as the litigation progresses. Judges may revise these expectation[s] 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, [but] the role of the guardian ad litem should at all times be clear.

Id.

¶26. This Court has held that “the guardian ad litem should never serve as a substitute for the court. The court is not bound by the guardian ad litem’s recommendation . . . .” Id. at 282 (footnote omitted). To be sure, guardians ad litem serve important roles as “appointed . . . investigator[s] for, or advisor[s] to, the court,” and, as authorized, “the guardian ad litem, should recommend a course of action to the court . . . .” Id. at 282. This Court has emphasized that “the trial court, and not the guardian ad litem, is the ultimate finder of fact.” Id. at 283. Further, this Court will not impose a strict rule in circumstances in which chancellors are authorized to exercise their discretion “as the needs of a particular case dictate . . . .” Id. at 281; see also S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss. 2000)(“Although this Court has required a guardian ad litem to perform tasks competently, there is no requirement that the chancellor defer to the findings of the guardian ad litem, as is proposed by the petitioners. Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.”).

¶27. When charges of child abuse or neglect arise, Mississippi Code Section 93-5-23 mandates the appointment of a guardian ad litem. The statute provides that a court “shall appoint a guardian ad litem if charges of child abuse or neglect are raised in a child custody action. Miss. Code Ann. § 93-5-23 (Rev. 2018) (emphasis added). [Fn 5] Under this statute, a judge is required to “investigate, hear and make a determination” regarding allegations of abuse. Id. And the court “is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem.” Carter v. Carter, 204 So. 3d 747, 759 (Miss. 2016) (citing Miss. Code Ann. § 93-5-23 (Rev. 2013)). Upon appointment, a guardian ad litem is obligated “to protect the interest[s] of the child[ren] for whom he has been appointed” and is authorized to “investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest.” Miss. Code Ann. § 43-21-121(3) (Supp. 2019). When appointed in accordance with Section 93-5-23, the guardian ad litem must be an attorney. Miss. Code Ann. § 93-5-23.

[Fn 5] The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney.

Miss. Code Ann. § 93-5-23.

¶28. Sylvia Barber argues on appeal that the chancellor was bound by this Court’s decision in McDonald v. McDonald and that, in a mandatory appointment, the [guardian ad litem] must either submit a written report or testify and must make recommendations to the court if requested. McDonald v. McDonald, 39 So. 3d 868, 883 (Miss. 2010). Indeed, this Court has relied on McDonald to hold that “[w]hen a chancellor chooses to hear the abuse allegation during a custody hearing, appointment of a [guardian ad litem] is mandatory. As part of his or her duties, the [guardian ad litem] must either submit a written report or testify, and must make recommendations to the court if requested.” Smith v. Smith, 206 So. 3d 502, 510 (Miss. 2016) (footnote omitted) (citing McDonald, 39 So. 3d at 883). Because, as discussed below, we find that the appointment of the guardian ad litem in this case was mandatory, the guardian was required to submit a written report or testify, and, if requested, to make recommendations to the court.

¶29. Before further discussion, we emphasize the serious and vital nature of guardians ad litem in safeguarding the welfare of children whose lives are impacted irrevocably by the decisions of our judicial system. The literal translation of the term guardian ad litem is guardian for the suit. Ad litem, Black’s Law Dictionary (7th ed. 1999). Section 93-5-23 and this Court’s decisions applying it make clear that the legislature and the judiciary have recognized the specific need for an officer of the court with the dedicated role of protecting the interests of children who are the subject of child abuse or neglect allegations. The appointment of a guardian ad litem is not a mere perfunctory hoop through which the court must go to resolve a child custody case. Rather, the role of the guardian ad litem is a meaningful one; it has been enshrined in the law and public policy of this state for the very reason that the guardian ad litem is the only participant in a child custody proceeding whose sole interest is identifying and protecting the rights of the children and reporting its findings to the court. Therefore, a chancellor’s failure to consider a mandatorily appointed guardian ad litem’s findings is an error of the utmost seriousness.

The court reversed and remanded. Justice Ishee dissented, joined by Randolph and Griffis. We’ll look at that next week.

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