When is a GAL Required? (Part II)

August 1, 2016 § Leave a comment

Last November, we discussed the COA’s decision in Carter v. Carter, a child-custody modification case in which the chancellor had removed custody from Jennifer Carter because of her squalid living conditions and inattention to the child’s dental care.

Jennifer appealed, claiming that it was error for the chancellor to adjudicate the case without appointing a GAL. The COA affirmed, pointing out that neither Jennifer nor her ex had asked the court to appoint one.

Jennifer filed for cert, which the MSSC granted. Oral argument has been completed, and we are awaiting the court’s decision. Jane Tucker posted on the case with links to the cert petition, supplemental briefs, and video of the oral argument. You can access her post at this link.

Here’s hoping that the high court takes this opportunity to clarify just what allegations or proof are necessary to trigger appointment of a GAl, and how grievous the situation needs to be. As for allegations, Jennifer argued in her cert petition that the COA’s decision imposes too harsh a standard on litigants; in other words, she is arguing that once the proof is in the record the chancellor has a duty to appoint. The question remains, though, how serious the child’s circumstances must be to require a GAL. In his opinion for the COA, Judge Fair wrote that the supreme court has typically drawn the line at fact situations that would trigger youth court jurisdiction, and he found that the facts in Carter did not rise to that level. maybe the court can add some clarity.

Suing on Behalf of a Ward

June 15, 2016 § 2 Comments

I frequently see petitions to appoint a guardian on behalf of a ward whose “only asset is a claim for personal injuries” to be asserted in a suit to be filed in circuit or federal court. I sign the order appointing and then don’t hear anything further from the participants until some time later after they have either hit the jackpot or have some middling settlement to approve.

The problem with the above is that it omits several steps. Several important, even vital, steps.

Take a look at MCA 93-13-27. Here it is in a nutshell:

  • All “suits, complaints, actions and administrative and quasi judicial proceedings for and on behalf of a ward for whom a general guardian has been appointed” must be brought in the name of the guardian for use and benefit of the ward.
  • Even though the foregoing language uses the term “general guardian,” the statute goes on to apply itself equally to general guardians, guardians of the estate only, guardians of the person and estate, and guardians of the person only.
  • Any such action may be commenced only after authority has been granted to the guardian “by proper order or decree of the court or chancellor of the county in this state in which the guardianship proceedings are pending, upon proper sworn petition and supporting oral testimony.”
  • A certified copy of the order authorizing the filing of the suit must be attached to the pleading commencing the action.
  • If suit or other proceeding is commenced, a certified copy of the authorizing order must be submitted “as evidence of his authority.”

The intent of the statute is clear that (a) you must get authority before proceeding, and (b) you must put the court or tribunal and other party on notice of your authority.

What might happen if you did not get authority and your case languished on a circuit court docket for more than three years after the occurrence and the other side moved to dismiss per MRCP 12(b)(6). Might you have a statute-of-limitations problem?

 

Mismanagement of a Guardianship Morphed into a Crime

November 17, 2015 § 1 Comment

Attorney Michael J. Brown mismanaged and embezzled more than $1.2 million of guardianship funds. It’s a sordid tale that you can review at this post, which includes links to several others. Brown’s conduct also attracted an indictment in Rankin County Circuit Court.

On November 12, 2015, the MSSC in Brown v. State affirmed his convictions, but reversed as to restitution:

¶61. Brown’s convictions were supported by sufficient evidence and were not against the great weight of the evidence. Ample evidence existed to show that the $550,000 in loans came out of guardianship funds, and the trial court applied the law correctly with regard to the “own use” element of the statute. Brown waived any objection to Rule 404(b) evidence being admitted at trial, and he waived any objection to the language in the jury instructions by failing to raise the issue in his post-trial motion. Regardless, both arguments are without merit. Thus, Brown’s convictions and sentence to a term of years are affirmed. However, the trial court exceeded its sentencing authority in sentencing Brown to pay $1.2 million in restitution; thus, this Court vacates the restitution portion of Brown’s sentence and remands the case for resentencing, in other words, for again determining restitution, consistent with this opinion.

Brown has already been disbarred. He leaves in his wreckage the ward, whose assets will probably never be recovered, his career, his family, and his reputation.

I doubt most of you will ever fall into such an abyss. But if you find yourself close, step back and think of how Mr. Brown’s misadventure turned out.

When is Appointment of a GAL Required?

November 4, 2015 § 1 Comment

There are three circumstances when appointment of a GAL in chancery court is required by statute: (1) when an allegation is made in pleadings or at hearing that there has been abuse or neglect; and (2) when there is an adoption to which both active parents have not consented; and (3) for the child in a termination of parental rights suit.

Other than those situations, it is in the chancellor’s discretion whether to appoint a GAL.

The question remains, however: what needs to be alleged in order to trigger the statutory mandate? That was the question before the court in the COA case of Carter v. Carter, handed down October 6, 2015.

Josh and Jennifer Carter were from each other in 2011. Jennifer got custody of the parties’ daughter, Delaney. Josh filed for modification of custody in 2012, alleging material change and adverse effect. In the course of the proceedings, Josh filed a motion to inspect the premises of Jennifer’s residence. The chancellor ruled that neither Josh nor his attorney should do so, but he appointed Aby, a local attorney to perform the inspection and file a report with the court. Although the appointment did not designate her as a GAL, and it did not spell out any duties of a GAL, Aby titled her report, “Report of Guardian Ad Litem.” Neither party had requested appointment of a GAL. At trial, Aby testified to deplorable conditions at Jennifer’s home, which the chancellor characterized as “shocking,” “squalid,” and “dangerous.” Aby’s report, considered with testimony about Delaney’s medical needs, were enough to convince the chancellor to conclude that custody should be modified, and he awarded custody to Josh.

Jennifer appealed, arguing that the chancellor erred by not appointing a GAL in the case. Specifically, she pointed to Josh’s testimony that she overlooked Delaney’s medical and nutritional needs, which, she contended, should have required the appointment. Jennifer’s argument raises what appears to be a simple question, but is really deceptively complex: what does it take to trigger the statutory mandate?

Judge Fair, for the majority, described the difficulty:

¶16. Our analysis of this issue is made more difficult because our supreme court has not elaborated on what sort of allegations are required, or when or how those allegations must be made, in order to make the appointment of a guardian ad litem mandatory. Neglect is difficult to define and could arguably be present, to some degree, in mundane allegations of imperfect parenting that should not demand investigation by a guardian ad litem. Jennifer’s implicit argument that any suggestion of neglect requires the appointment of a guardian ad litem would amount to a de facto rule that a guardian ad litem must be appointed in most custody disputes.

Almost every custody modification case involves allegations of “imperfect parenting” that often does not rise to the level off neglect and abuse. So where does one draw the line?

The court went on to point out that the MSSC “has always predicated the guardian-ad-litem requirements on the Mississippi Youth Court Law and related statutes,” and analyzed the applicable law. The opinion continues:

¶18. We conclude that since the requirement of appointing a guardian ad litem in chancery cases derives from an exception to the youth court’s jurisdiction over abused or neglected children, to trigger the guardian-ad-litem requirement, the allegations of neglect must be of sufficient severity such that, if proven, they would have triggered the youth court’s jurisdiction had there not already been proceedings in the chancery court. In other words, they must amount to an allegation that the child was a neglected child as defined by the Youth Court Law. It defines a neglected child as one:

(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter;

(ii) Who is otherwise without proper care, custody, supervision or support; or

(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or

(iv) who, for any reason, lacks the care necessary for his health, morals or well-being.

Miss. Code Ann. § 43-21-105(l) (Supp. 2014).

¶23. Given the wide range of conduct that could arguably constitute neglect, this Court has held that when neglect is not expressly alleged, the question of whether it has been effectively alleged is entrusted to the sound discretion of the chancellor. See Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004). In this case, the chancellor clearly did not take the allegations and evidence presented regarding Delaney’s health and care in Jennifer’s custody as possessing the weight and severity of an allegation that she was a neglected child under the Youth Court Law, and we cannot say there was an abuse of discretion in the failure to appoint a guardian ad litem to investigate.

The COA did hold that, if appointment of a GAL in this case were required, Aby’s conduct fulfilled that role.

It would be a good idea, if you think a GAL should be appointed, to include some language in your pleadings that invokes the criteria of the Youth Court Act. Then you can point to the specific language of the statute to support your request. Only be sure you have substantial proof to support your allegations, or else your client may be looking at paying out a chunk of cash for the GAL’s troubles, not to mention the other side’s attorney’s fees to defend.

 

 

 

 

 

An Occasion When Adjudication is not Res Judicata

July 27, 2015 § Leave a comment

Does the judgment closing a conservatorship (or guardianship, for that matter) bar a subsequent action to set aside transactions that could have been adjudicated within the conservatorship while it was open?

That was the question taken up by the MSSC in the case of Estate of White: White v. White, decided December 11, 2014.

In that case, Charles William White (Bill) and his son, Tommy, were partners in a convenience store operation. In 2000, Bill married Anita White. Tommy bought out Bill in 2005, and paid his father cash for his interest, but the two never exchanged deeds necessary to finalize the buyout.

By 2009, Bill was in need of a conservatorship due to declining health. Anita and Tommy disagreed strongly over the course of Bill’s care; Anita wanted to make him comfortable so he could die with dignity, and Tommy insisted on life-sustaining care. Tommy used a power of attorney (POA) to transfer Bill’s interest in the partnership properties to himself to complete the transfer.

Tommy filed a petition to be appointed conservator of his father. Anita filed a counterclaim asking that she be appointed instead, and she asked the court to set aside any and all transactions by which Tommy transferred interest in his father’s assets to himself using Bill’s POA.

The chancellor found a conservatorship to be in Bill’s best interest, but rather than appointing either Anita or Tommy, he appointed a third party.

When Bill died in 2009, the conservator petitioned to the court to be discharged and to distribute the assets of the conservatorship to Bill’s estate. Both Anita and Tommy agreed to an order to that effect. The order waived accounting, but did not mention Anita’s claim to set aside the POA transactions.

In 2010, Anita filed a complaint to set aside the POA transactions. Both parties filed motions for summary judgment. The court sustained Tommy’s motion, ruling that the order closing the conservatorship barred Anita’s subsequent action, because she had brought the action within the conservatorship, which had been closed.

Anita appealed, and the COA affirmed, finding that the four identities of res judicata were present, and that, therefore, her action was barred.

The MSSC granted cert, and reversed both the COA and the chancellor. Here is how Justice Dickinson addressed the issue for a unanimous court (Justice Lamar not participating):

¶9. We conduct a de novo review of a trial court’s grant of summary judgment. A civil defendant may raise res judicata in a motion for summary judgment where a plaintiff’s suit centers around issues decided in a previous lawsuit. But for res judicata to apply, the defendant must show that the judgment rendered in the previous action was a final judgment on the merits.

¶10. A final judgment on the merits is “[a] judgment based on the evidence rather than on technical or procedural grounds.” While our prior cases have considered whether a judgment constituted a “final judgment on the merits” on a case-by-case-basis, a judgment generally will not be considered a “final judgment on the merits” when the first case was dismissed for a procedural defect or some other technical ground that prevented the court from reaching the merits of the case. If, in the previous case, the court did render a final judgment on the merits, res judicata will apply if both cases share four common identities.

¶11. In granting Tommy’s motion for summary judgment, both the chancellor and Court of Appeals thoroughly analyzed the four common identities necessary for res judicata to apply, but both courts failed to analyze the threshold requirement of a final judgment. Absent a final judgment, the alignment of the four identities is irrelevant.

¶12. The chancellor’s order discharging the conservator did not address any of the contested issues. As our precedent shows, a judgment based on technicalities or procedural issues generally will not be considered a final judgment on the merits. In his order discharging the conservatorship, the chancellor could have rendered a judgment on the contested claims between Tommy and Anita, but he did not.

¶13. The record indicates that the conservatorship was opened in early 2009 and closed when Bill died in June 2009. Far from a final judgment concerning the merits of the contested issues, the final judgment discharging the conservator was based solely on Bill’s death. The chancellor considered no other evidence when entering his order. Although Tommy correctly points out that Anita requested the court set aside the deed transfers in the conservatorship proceeding, the chancellor never addressed the issue.

[NOTE: Authority supporting the above language was set out in footnotes that were omitted in this post because they are too tedious to copy and paste. You can click on the link above to access the full opinion.]

You can take away from this that an order or judgment closing a conservatorship or guardianship does not extinguish the claims that were raised during the time that it was opened.

What would have been the outcome if Anita had not filed her claim to set aside the transactions while the conservatorship was open? My thinking without research is that she would have had a viable claim if she filed within the statute of limitations. What do you think?

Medicaid and the “Made-Whole” Rule

July 13, 2015 § Leave a comment

In Mississippi, an insurer is not entitled to equitable subrogation unless and until the insured has been fully compensated. It’s known as the “made-whole” rule. Hare v. State, 733 So.2d 277, 284 (¶26) (Miss. 1999).

Can a chancellor rely on the made-whole rule to deny Medicaid’s claim of subrogation in a minor’s settlement?

A chancellor did deny Medicaid’s right of subrogation that would have left Javas Pittman, a minor, with only $6,000 from a $25,000 settlement. Javas had been seriously injured when he was riding on the hood of a car that was involved in a crash. There is no explanation in the record for the reason why the child was on the hood of a moving automobile. If his medical bills are any indication of the gravity of his injuries, they must have been severe, because they totaled more than $170,000, of which Medicaid paid around $66,000. The judge relied on Hare to deny Medicaid’s claim.

The COA reversed the trial court ruling in the case of Medicaid v. Pittman, handed down June 30, 2014. Judge Maxwell wrote for the court:

¶14. Unlike Hare, here there are no “issues of unilateral contracts and bargaining power in negotiations.” Miss. Ins. Guar. Ass’n v. Brewer, 922 So. 2d 807, 812 (¶23) (Miss. Ct. App. 2005). Instead, we are faced with a statute creating a clear right to reimbursement. Miss. Code Ann. § 43-13-125. [Footnote omitted] And according to the supreme court, when the “right of reimbursement ‘exists by virtue of statute,’” the equitable made-whole rule does not apply. Federated Mut. Ins. v. McNeal, 943 So. 2d 658, 661 (¶¶13-14) (Miss. 2006) (quoting Miss.Food & Fuel Workers’ Comp. Trust v. Tackett, 778 So. 2d 136, 143 (¶27) (Miss. Ct. App. 2000)). Instead, the existence of this right “must rise or fall strictly as a matter of statutory interpretation.” Id. at (¶13).

¶15. Melissa [Javas’s guardian] argues McNeal’s holding is narrow and only applies to the specific statute addressed in that case, Mississippi Code Annotated section 71-3-71 (Rev. 2011), which is part of the workers’ compensation act. But what distinguished the subrogation rights in McNeal from the rights in Hare was not workers’ compensation. Rather, the key distinction in McNeal was the fact the insurer’s subrogation rights “do not spring from a contractual agreement as in Hare, but rather are conferred by [s]ection 71-3-71.” McNeal, 943 So. 2d at 661 (¶13); see also Brewer, 922 So. 2d at 812 (¶23) (distinguishing legislatively established subrogation rights from the contractual rights subject to the made-whole rule in Hare). In other words, it was the source of the subrogation right—statute versus contract—that made the equitable made-whole doctrine inapplicable. McNeal, 943 So. 2d at 661 (¶¶13-14); see also Proulx, 121 So. 3d at 223-24 n.1 (acknowledging Medicaid’s statutory right to impose a lien on a settlement that did not make the injured party whole).

¶16. Here, Medicaid’s right to reimbursement did “not spring from a contractual agreement” but rather was conferred by section 43-13-125. McNeal, 943 So. 2d at 661 (¶13). Thus, the chancellor “erred when [he] applied the equitable made-whole doctrine to [this] statutory right[.]” Id. Like section 71-3-71,7 section 43-13-125(2) “unambiguously provides the method for distributing proceeds when, as here, an injured [Medicaid recipient] recovers from a third party.” McNeal, 943 So. 2d at 661 (¶14). So like section 71-3-71, the clear directive of section 43-13-125(2) could not be disregarded. See McNeal, 943 So. 2d at 661 (¶¶13-14).

¶17. Under section 43-13-125(2), “Any amount recovered by a recipient or his or her legal representative shall be applied,” first, to the recipient’s attorney’s fees and legal costs of recovery, second, to the amount of Medicaid’s interest, and, last, to the recipient, should there be “any excess.” While the chancellor recognized Javas’s attorney’s right to a priority payment of $8,640.89 for legal fees and expenses, the chancellor improperly ordered that Melissa could receive the excess on Javas’s behalf without first reimbursing Medicaid $10,308.40.

¶18. The chancellor based his decision not to follow section 43-13-125(2)’s directive by asserting Medicaid’s $10,308.40 recovery would unfairly leave Javas with a little over $6,000—a “neglible [sic] sum,” as he put it. While this may be true, “a chancellor, despite his broad equitable powers, is not free to disregard the clear guidance of a pertinent statute simply because he concludes that it would be unfair on the particular facts of the case to apply the statute according to its terms.” McNeal, 943 So. 2d at 661 (¶13) (quoting Tackett, 778 So. 2d at 143 (¶27)). Further, were Melissa to comply with the order and receive the settlement proceeds without first reimbursing Medicaid, she would be in clear violation of section 43-11-125(2), which in turn would jeopardize her and Javas’s Medicaid-eligibility status. See Miss. Code Ann. § 43-13-307 (Rev. 2009). [Footnote omitted]

¶19. Though the Mississippi Constitution vests chancery courts with subject-matter jurisdiction over equitable matters involving minors [Footnote omitted], such jurisdiction does not permit exceptions to clear statutes because they apply to minors. “[E]quity follows the law,” and “courts of equity cannot modify or ignore an unambiguous statutory principle in an effort to shape relief.” In re Estate of Smith, 891 So. 2d 811, 813 (¶5) (Miss. 2005) (citing In re Estate of Miller, 840 So. 2d 703, 708 (¶14) (Miss. 2003)). Because the order approving the minor’s settlement contained a condition that conflicts with the clear statutory principle that Medicaid shall recover its interest from the settlement, the order cannot stand. We have no option but to reverse the chancellor’s judgment and remand this case back to the chancery court to oversee a settlement that both takes into account Javas’s best interest and Medicaid’s unambiguous statutory right to reimbursement from the settlement.

Don’t forget that Medicaid will negotiate the amount of its lien. I have seen cases in which Medicaid has foregone its claim altogether, although I understand from one of the participants in this case that Medicaid refused to reduce its claim for some reason.

Always make sure you inquire about whether the minor for whom the settlement is sought is a Medicaid recipient. Carefully study the medical bills to see whether Medicaid paid anything. If it did, you must notify it of the settlement and get a letter specifying the amount of the lien it is claiming, and make that letter a part of the record.

Asking Permission Rather than Forgiveness

June 18, 2015 § 3 Comments

That old saw about it being easier to ask forgiveness than to get permission may apply in some aspects of life. It does not, however, apply in guardianships.

I wish I had a few bucks for every time I have seen a lawyer open a guardianship, qualify the guardian, and then go off and file a PI or wrongful death case “for the benefit of the ward.” Later, the attorney has to beg forgiveness, because he had no permission.

MCA 93-13-27 spells out specifically what is required:

All suits, complaints, actions and administrative and quasi judicial proceedings for or on behalf of a ward for whom a general guardian has been appointed shall be brought in the name of the general guardian for the use and benefit of such ward, be such general guardian that of his estate or that of his estate and person or that of his person only. And all such actions, suits or proceedings shall be commenced only after authority has been granted to such general guardian by proper order or decree of the court or chancellor of the county in this state in which the guardianship proceedings are pending, upon proper sworn petition and supporting oral testimony. A certified copy of said order authorizing such suit or proceedings shall be attached to the complaint or instrument or document originally filed as commencing such action, suits or proceedings. If such proceedings be commenced by act of said general guardian, then on request therefor a certified copy of said order or decree shall be submitted by said general guardian as evidence of his authority to the person or persons with or through whom the guardian may deal in performing any act commencing such proceedings. [Emphasis added]

So before you go crashing off into circuit, county, or district court, you must: (a) file a sworn petition in the guardianship case outlining what it is you propose to do; (b) set the matter for hearing; and (c) present oral testimony in support of your petition. It should go without saying that the petition can only by filed by a guardian who has been properly appointed by the court, has posted whatever bond was required, has taken the oath, and has been issued letters of guardianship.

When the lawsuit is filed, a certified copy of the order authorizing it must be attached as an exhibit to the complaint.

There can be some ramifications here. If I were a defendant, I think I might sit back and let the statute of limitations run on the claim, and then file to dismiss the lawsuit for lack of standing. How would you feel as the attorney for the guardian in that situation?

 

Substantial Evidence and the GAL Report

March 9, 2015 § Leave a comment

The recent MSSC decision in Gateley v. Gateley, handed down February 12, 2015, is a notable guardian ad litem (GAL) case in several respects.

Clayton and Lauren Gateley had entered into a consent to divorce on the sole ground of irreconcilable differences, leaving several issues for adjudication by the court, including custody of their 6- and 2-year-old children.

Both parties pointed the finger of unfitness at each other. Lauren accused Clayton of drinking too much beer. Clayton accused Lauren of suffering from trichotillomania — “a nervous disorder characterized by the irresistible impulse to pull one’s own hair.”

At trial, Lauren’s witnesses did not corroborate her accusations that Clayton would drink before, during, and after work, that he drove around with a cooler of beer in his truck and drank beer while driving, including when the children were in the car, and that he would often be drunk. Clayton denied all of the allegations, and Clayton’s witnesses backed him up.

Clayton testified that Lauren spent hours in the bathroom indulging her hair-pulling, taking her attention away from the children. Lauren denied it, but Clayton’s witnesses contradicted her.

The chancellor found that two Albright factors favored Clayton: physical and mental health of parents, and stability of home environment. And two favored Lauren: age and sex of the children, and better parenting skills. The other factors favored neither. But:

¶10. Noting that each parent had two factors in their favor, the chancellor explained “this is not a scoring contest. It must be considered in the overall circumstances in which the parents and children find themselves.” After considering “the totality of the circumstances and examining those factors accordingly,” and finding both parties “fit, proper and suitable parents,” the chancellor awarded Clayton custody of the son and awarded Lauren custody of the daughter. This unusual arrangement, he explained, would only be temporary, until an investigation could be conducted and a custody determination finalized.

The GAL, attorney Debra Branan, filed no written report, but did give her recommendations at trial. Her testimony was generally based on hearsay. She recommended that, if the court did not continue the split-custody arrangement, custody be awarded to Clayton. Neither attorney questioned the GAL. Neither party, after being given the opportunity by the court, had anything further by way of testimony or argument.

The court entered an order granting custody to Clayton, and Lauren appealed.

The MSSC affirmed, unanimously.

On the question whether the GAL report was adequate:

¶21. We find it unnecessary to pass on the question of whether Branan’s investigation was lacking. Because, even assuming for purposes of argument that Branan’s investigation was woefully inadequate—as Lauren argues—we still would affirm the chancellor. As stated above, the “cardinal principle” in custody decisions is what is in the “best interests and welfare of the minor child.” Once a chancellor has decided what is in a minor’s best interests, we will not overturn that decision—provided it is based on substantial evidence—unless it is clearly erroneous. After careful review, we find that the chancellor’s decision here is supported by substantial evidence and is not clearly erroneous.

¶22. This Court previously has held: “In any case where a [guardian ad litem] is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the [guardian ad litem], as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves . . . .Thus the question to be answered by this Court is . . . whether the evidence in the record support[s] the chancellor’s decision.” Lorenz v. Strait, 987 So. 2d 427, 431 (Miss. 2008) (citing Yates v. Yates, 284 So. 2d 46, 47 (Miss. 1973)) (emphasis added).

¶23. As noted above, the chancellor discussed each Albright factor individually and specifically. In doing so, he made several findings of fact that provide support for his ultimate custody determination. Among those, that Clayton offered the more stable home, that Clayton was mentally healthier than Lauren, and that Lauren had moved twice and lived in a four-bedroom house with her boyfriend and his two children.

¶24. Our law does not mandate that the chancellor follow a guardian ad litem’s recommendation, because the chancellor, “not the guardian ad litem, is the ultimate finder of fact.” S.G. v. D.C., 13 So. 3d 269, 282 (Miss. 2009) (citing Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002)). The chancellor made this clear to the parties when he explained that he would “listen to [Branan’s] recommendation and may very well accept her recommendation, reject her recommendation, do something totally different, or leave it the way it is.”

¶25. In short, the chancellor properly fulfilled his role as factfinder by considering Branan’s oral report and her recommendation, along with all the other relevant evidence, and determining how much weight it deserved. See Hensarling, 842 So. 2d at 587. See also S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss. 2000) (“The guardian ad litem’s presence . . . in no way detracts from the chancellor’s duty to hear the evidence and make a decision on all of the evidence, not just on the testimony of the guardian ad litem.”); S.G., 13 So. 3d at 282 (“Recommendations of a guardian ad litem must never substitute for the duty of a chancellor.”).

¶26. Moreover, this Court will uphold a chancellor’s custody order even if it is partly based on a less-than-perfect guardian-ad-litem investigation. See White v. White, 26 So. 3d 342 (Miss. 2010). In White, the chancery court modified a custody order in favor of a father, and when the mother appealed, this Court affirmed. Id. at 352. The chancellor considered a guardian ad litem’s recommendation, even though the guardian ad litem had not conducted a court-ordered home study (or otherwise visited the mother’s home), and had not reviewed all the records she had sought from the mother. In affirming the judgment of the chancery court, this Court did not even address the arguments about the guardian ad litem’s recommendation, explaining that “[o]n appeal, we cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Id. at 352.

As for whether the issue of the adequacy of the report was preserved for appeal, Justice Lamar addressed the question in footnote 4:

As noted above, Lauren declined to cross-examine Branan and failed to make any contemporaneous objections. However, these issues are preserved for appeal because of their bearing on the best interests of the minor children involved. Natural Father v. United Methodist Children’s Home, 418 So. 2d 807, 809 (Miss. 1982) (Explaining that in “case[s] where the basic issue involves the rights and destiny of small children” this Court relaxes “[t]he general rule . . . that questions not raised at the trial level will not be considered . . . as grounds for reversal”). And we also note that, strictly speaking, Lauren raised these “at the trial court level” in her motion to reconsider, which the chancellor denied on its merits.

Boiled down to its essentials, the chancellor was affirmed because there was substantial evidence in the record to support his findings. That’s as it should be.

A couple of pointers:

  • If the judge is going to appoint a GAL, insist on a written report to be provided to you well in advance of trial. It’s no fun to be ambushed. If the judge won’t include an order for a written report in advance of trial, file a motion asking for it to be done, and get a ruling so as to preserve the point for appeal.
  • If the GAL report is against your client, have witnesses lined up to refute it. Always cross-examine the GAL.

I was glad to see that the court did not take McDonald v. McDonald, 39 So.3d 868 (Miss. 2010), to the next level by outlawing all hearsay in GAL reports as Justice Dickinson suggested in his specially concurring opinion in that case. Justice Lamar’s opinion reflects what should be our law: that the overriding consideration in child custody cases is the best interest of the child, and whatever resources can be brought to bear to achieve it should be used.

From the Land of Broken Dreams

February 18, 2015 § 1 Comment

I’ve posted here, here, here, here, and here about the unfortunate guardianship of Demon B. McClinton, who inherited more than $3 million dollars from his mother, who died in 1999. The guardianship was closed in 2006, but reopened later to investigate abuses in the case.

What the guardian ad litem discovered was that Demon’s guardian and others had pilfered the account to near-extinction. The attorney, Michael J. Brown, was jailed until he could either account for the missing millions, or until he could replace them. He ultimately could do neither.

Disenchanted with the chancellor’s ruling finding him in contempt, Mr. Brown appealed. You can read how the COA disposed of his appeal in In re: Guardianship of Demon B. McClinton: Michael J. Brown v. Thomas A. McClinton, decided by the COA February 3, 2015. To put it in blunt terms, his appeal was for naught.

You can read the COA’s opinion by Judge Roberts for yourself. The point I am intending to drive home here is that there are serious professional, financial, legal, and even criminal repercussions awaiting lawyers who ignore or flout their duties in fiduciary matters. Read the Uniform Chancery Court Rules, Part 6, for yourself. Or, simply consider what happened to Mr. Brown. His mishandling of this guardianship is a textbook example of how not to represent a fiduciary.

Oh, and lest you are chafing at the lawyer being saddled with the blame, check out what the court did to the guardian and his friends who benefited financially at the ward’s expense.

Sadly, however, as the opinion points out, there may be nothing that Mr. McClendon can recover from the malefactors. Whatever his dreams were for the comfortable estate that his mother left him will not be realized. There may be actions available against Mr. Brown’s malpractice carrier and the fiduciary’s bonding company. I don’t know that for a fact, but even if he pursues, those avenues, it’s doubtful that Mr. McClendon will ever recoup his losses.

Let’s not overlook the wreckage that Mr. Brown left in his wake. There is a legal practice destroyed and a reputation annihilated. The toll on his family, I am sure, has been devastating. All because he let a guardianship get out of control.

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.

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