No GAL = No Error
April 10, 2019 § Leave a comment
After Amber Brown was personally served with a summons for a contempt proceeding, she failed to appear and was found in contempt and ordered to pay her ex-husband, Hewlett, $5,000 in attorney’s fees. She appealed.
One of her manifold issues was that the judge erred in not granting a continuance to allow for appointment of a GAL.
In Brown v. Hewlett, decided March 12, 2019, the COA affirmed. Here is Judge Jack Wilson’s opinion on the point:
¶29. First, Brown asserts that the chancery court should have granted a continuance and appointed a GAL to investigate “allegations of abuse and/or neglect.” However, Brown never asked the court to appoint a GAL. Therefore, any claim that the court should have exercised its discretion to appoint a GAL is procedurally barred. See, e.g., McDonald v. McDonald, 39 So. 3d 868, 885 (¶54) (Miss. 2010) (“The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision.”).
¶30. Nor was the appointment of a GAL mandatory in this case. If there is a legitimate charge of abuse or neglect in a custody proceeding, then the chancery court must appoint a GAL, “whether the parties requested a [GAL] or not.” Carter v. Carter, 204 So. 3d 747, 758-59 (¶50) (Miss. 2016) (citing Miss. Code Ann. §93-5-23 (Rev. 2018)); see also Miss. Code Ann. § 93-11-65 (Rev. 2018)). However, the appointment of a GAL is mandatory only if there is a “sufficient factual basis to support” an allegation of abuse or neglect. Carter, 204 So. 3d at 759 (¶51). The chancery court has “discretion” to determine whether such an allegation is “legitimate.” Id. at (¶53). If the court concludes that there is no factual basis for the allegation, then the appointment of a GAL is not mandatory. Id. In this case, Brown fails to cite to any concrete allegation of abuse, let alone any evidence to support such a claim. Even at the final hearing before the chancery court, Brown merely testified that Lily had seen a counselor for unspecified reasons. On this record, the chancery court did not abuse its discretion by not appointing a GAL sua sponte in this contempt proceeding. [Fn omitted]
Simply because you insert the magic phrase “abuse and neglect” into your pleading, you have not created a duty for the chancellor to appoint a GAL in your case. As the opinion demonstrates, there must be a sufficient factual basis to support the allegation — sufficient to convince the judge that there are facts worth investigating that bear on the best interest of the child. Remember, you must call the request to the attention of the court, and that is done via motion. Under R 43(e), you can use an affidavit of your client or someone with eye-witness knowledge to support the motion.
How to Address the GAL Report
October 15, 2014 § 2 Comments
There are three types of cases in which a chancellor is required to appoint a guardian ad litem (GAL):
- MCA 93-5-23 requires appointment of a GAL “when a charge of abuse or neglect arises in the course of a custody action.”
- MCA 93-15-107 requires a GAL for the child(ren) in termination of parental rights (TPR) cases.
- MCA 93-17-8 requires a GAL for the child(ren) in a contested adoption.
In other cases the court may appoint a GAL whenever the court deems it necessary to protect the interests of a child or vulnerable adult.
The chancellor is never required to follow or adopt the recommendations and findings of a GAL, but when she does not do so there are certain requirements that the judge must meet in rendering her opinion.
In the October 9, 2014, MSSC case, Borden v. Borden, Chief Justice Waller, for the unanimous court, spelled it out:
¶11. In child-custody cases where there are allegations of abuse or neglect, courts must appoint a guardian. Miss. Code Ann.§ 93-5-23 (Rev. 2013); Floyd v. Floyd, 949 So. 2d 26, 28 (Miss. 2007). And when the appointment is mandatory, chancellors, in their findings of fact, must include at least a summary of the guardian ad litem’s recommendations. Id. While a chancellor is not bound by the guardian ad litem’s recommendations, “if the court rejects the recommendations . . . , the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id.; S.N.C. v. J.R.D., Jr., 755 So. 2d 1077, 1082 (Miss. 2000).
¶12. In the current case, Mary Jane raised her concerns that the children might have been sexually abused. Accordingly, the chancellor appointed a guardian ad litem. The guardian ad litem conducted an investigation into the child-abuse claims and prepared a recommendation regarding custody of the children. The guardian ad litem found no evidence of abuse, and after an Albright analysis, determined that Mary Jane should be awarded custody.
¶13. When the guardian ad litem’s appointment is mandatory, as in this case, the chancellor must include a summary of the guardian ad litem’s recommendations in his or her findings of fact and conclusions of law. S.N.C., 755 So. 2d at1082. And “when a chancellor’s ruling is contrary to [that] recommendation . . .” the court must state “the reasons for not adopting the . . . recommendation . . . in the findings of fact and conclusions of law.” Id. While the chancellor in the current case acknowledged the guardian ad litem’s recommendation, he did not provide a summary of the report or a summary of his reasons for rejecting the guardian ad litem’s recommendation. Therefore, we find the chancellor erred in failing to do so.
The court reversed on this and another ground, and remanded the case for proceedings consistent with the opinion.
If you have a case involving a GAL, and the judge rules contrary to the GAL’s recommendations, be sure that the court’s findings include both a summary of the GAL’s findings and the court’s reasons for not following the GAL’s recommendations. Whether the appointment was mandatory or not, I think it’s the best practice. If the judge neglected to do that in his opinion, file a timely R59 motion and ask the court to add his findings. Don’t do it and you might just get a free pass for a retrial after a brief detour to the COA.
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