The Flip Side of Restricting the GAL

June 1, 2020 § Leave a comment

Last week we visited the MSSC’s majority decision in Barber v. Barberwhich held that it was error for the chancellor to exclude a GAL report from evidence and to limit the GAL’s testimony based on the GAL’s conclusion that allegations of abuse were unfounded.

Today we will look at Justice Ishee’s dissent, joined by Chief Justice Randolph and Justice Griffis. It’s somewhat lengthy by this blog’s standards, but it’s worth a read:

¶42. The statute requires the appointment of a guardian ad litem “when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151 . . . .” Miss. Code § 93-5-23 (Rev. 2018). As the majority acknowledges, more than a mere allegation is required to invoke the statute; the chancellor “is provided discretion to determine if issues of abuse or neglect have sufficient factual basis to support the appointment of a guardian ad litem.” Maj. Op. ¶ 27 (internal quotation marks omitted) (quoting Carter v. Carter, 204 So. 3d 747, 759 (Miss. 2016)). “The statute should not be read ‘as requiring . . . the appointment of a guardian ad litem based merely on an unsubstantiated assertion found in the pleadings of one of the parties.’” Carter, 204 So. 3d at 759 (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (Miss. Ct. App. 2004)).

¶43. The majority sidesteps the question of whether there was a sufficient factual basis to trigger the statute. It appears instead to be satisfied with its supposition that “at the time of the appointment, the chancellor considered the requirements for a mandatory appointment to be met.” See Maj. Op. ¶ 34 n.6. From my own review of the record, I disagree; it appears that the chancellor appointed the guardian ad litem out of an abundance of caution, not because he had found that doing so was statutorily required. But regardless of the chancellor’s subjective intent, the appointment was not statutorily required because the allegation the children were abused was never substantiated. See Carter, 204 So. 3d at 759.

¶44. Sylvia leveled a cursory allegation of abuse after the chancellor awarded temporary custody to Mark—Sylvia alleged just that “Mark is guilty of conduct constituting abuse towards the minor children, inclusive of physical, verbal and emotional abuse.” The chancellor appointed a guardian ad litem to look into Sylvia’s allegation. The guardian ad litem was instructed to report back to the court whether appointment of a guardian ad litem was mandatory, but she was also to “report to this [c]ourt if there is even a shred of thought that there might be any danger to the child[ren].” The guardian ad litem reported back with no details about the allegations, just her conclusion that the allegations were “unsubstantiated at this time”—unsubstantiated is, again, a word this Court and the Court of Appeals have used to describe allegations that do not require the appointment of guardian ad litem. See Carter, 204 So. 3d at 759. Nonetheless, the guardian ad litem went on to recommend that the allegations “[rose] to the level that the [guardian ad litem] should be appointed as a permanent [guardian ad litem].” The chancellor then entered an order finding that the appointment of a guardian ad litem was “necessary and warranted.” The order instructed the guardian ad litem to “conduct an investigation” and to “make a recommendation,” but it did not say the appointment was mandatory under the statute. In fact, the chancellor’s order indefinitely appointing the guardian ad litem said nothing at all about the allegations of abuse.

¶45. Later, after the chancellor heard the details, he changed his mind about the need to hear the guardian ad litem’s report or recommendation. The chancellor found unequivocally that the appointment had been discretionary and that the allegation Mark had abused the children was not credible. He held,

[T]his Court is the ultimate arbiter of whether or not there is credible evidence of abuse or neglect that would trigger this Court appointing [a] guardian ad
litem.

And there is absolutely no doubt in this Court’s mind that after hearing the testimony, if this Court were to be asked to appoint a guardian ad litem based
upon the credible evidence, this Court would not appoint a guardian ad litem in this matter.

This matter is chock full of bad parenting, bad judgment, general knucklehead behavior and immaturity, which makes it consistent with about 90 percent of the cases that come to this Court.

As such, as the ultimate foundation upon which the guardian ad litem was appointed, and that is potential abuse, neglect of the minor child, in this Court’s view, not being credible or substantiated in any way, the Court would indeed grant the motion to exclude the guardian ad litem report, as well as this
Court would exclude the testimony of the guardian ad litem herein.

The chancellor reached this conclusion after hearing three days of testimony and conducting in camera interviews with the two oldest children.

¶46. In changing the guardian ad litem’s assignment to suit the needs of the case as it unfolded, the chancellor acted according to this Court’s prior direction—the chancellor’s order appointing a guardian ad litem “should not permanently bind the court should needs change as the litigation progresses.” S.G. v. D.C., 13 So. 3d 269, 281 (Miss. 2009). A chancellor has the authority to expand or limit the role of a guardian ad litem “as the needs of a particular case dictate . . . .” S.G., 13 So. 3d 281. “The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice” and her “role at trial may vary depending on the needs of the particular case.” Id. at 280-81. The majority notes these holdings but fails to give them effect. See Maj. Op. at ¶¶ 24-25.

¶47. I submit that reversible error cannot be found without a showing that the allegation of abuse was sufficiently substantiated and credible to make the appointment of a guardian ad litem mandatory under the statute. See Porter, 23 So. 3d at 449; Carter, 204 So. 3d at 759. No such showing has been made.

¶48. The Court of Appeals addressed a very similar scenario in the recent Kaiser v. Kaiser, 281 So. 3d 1136 (Miss. Ct. App. 2019). There, a chancellor appointed a guardian ad litem to investigate allegations the children had been endangered when the mother exposed them to her abusive boyfriend. Id. at 1140. The guardian ad litem was subsequently released without giving a final report or recommendation to the chancellor, after it became clear that the children had not been abused or neglected. Id. at 1141-42. The Court of Appeals found no error because the appointment had been discretionary:

Because allegations of abuse mandating the appointment of a GAL were not present in this case, the chancellor’s appointment of the GAL was discretionary and not statutorily mandated pursuant to section 93-5-23. When an appointment of a GAL is discretionary, the chancellor is not required to include his or her reasons for rejecting the GAL’s recommendation. Id. at 1142 (citing Porter, 23 So. 3d at 449).

¶49. Here, before trial, the allegation that the children were abused was bare and “unsubstantiated,” as the guardian ad litem found. It is not mandatory to appoint a guardian ad litem “based merely on an unsubstantiated assertion found in the pleadings of one of the parties.” Carter, 204 So. 3d at 759 (emphasis added) (internal quotation mark omitted) (quoting Johnson v. Johnson, 872 So. 2d 92, 94 (Miss. Ct. App. 2004). At trial, the most severe allegations leveled against Mark were that he had struck one of the boys on the top of the head with the handle of a kitchen knife (to get his attention) and had pushed his stepson (the oldest, about fourteen years of age) into a nest of yellow jackets. The appointment of a guardian ad litem is only mandatory when “the allegations of abuse and/or neglect rise to the level of a ‘charge of abuse and/or neglect’” under the Youth Court Law. Carter, 204 So. 3d at 759 (quoting Miss. Code Ann. § 93-5-23 (Rev. 2013)). The chancellor had substantial evidence to support his ultimate finding that the credible allegations amounted to little more than “bad parenting, bad judgment, [and] general knucklehead behavior and immaturity.”

¶50. Applying Carter and Porter and Kaiser, I would find that the appointment of the guardian ad litem here was discretionary, not mandatory under the statute, and that no error resulted from the chancellor’s decision not to hear the guardian ad litem’s recommendation. See Porter, 23 So. 3d at 449; Kaiser, 281 So. 3d at 1142.

¶51. Finally, I would point out that this issue should be procedurally barred for two reasons. First, even though Sylvia admitted at trial that the allegation of abuse had to be sufficiently credible for the appointment of a guardian ad litem to have been mandatory, on appeal she entirely neglected to brief the question of whether her allegation of abuse was substantiated. See Carter, 204 So. 3d at 759. Like the majority, Sylvia just assumes the question was finally decided by the appointment of a guardian ad litem following allegations of abuse. I do not agree and would hold that reversible error cannot be found without a showing that the appointment really was required by the statute. See Porter, 23 So. 3d at 449. Since Sylvia failed to brief that question entirely, she has waived the issue on appeal. See Rosenfelt v. Miss. Dev. Auth., 262 So. 3d 511, 519 (Miss. 2018) (“The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.” (internal quotation marks omitted) (quoting Jefferson v. State, 138 So. 3d 263, 265 (Miss. Ct. App. 2014))).

¶52. Sylvia also failed to proffer the guardian ad litem’s report or testimony. A party complaining of the exclusion of evidence is required to proffer that evidence. Gordon v. Wall (In re Estate of Waller), 273 So. 3d 717, 720 (Miss. 2019). This is so the trial court will have an opportunity to correct its mistake (if there was one) and so a reviewing court can judge whether the error was sufficiently important to require reversal. See id. Reversible error could only result here if the chancellor’s decision was contrary to the guardian ad litem’s recommendation. See Porter, 23 So. 3d at 449. Silvia elected not to make the guardian ad litem’s report and recommendation part of the record, so this Court can only speculate about whether its exclusion from evidence was reversible error.

¶53. The statute does not require the appointment of a guardian ad litem in response to a bare, unsubstantiated allegation of abuse. Carter, 204 So. 3d at 759. The appointment of a guardian ad litem here was therefore discretionary, so there was no error in the chancellor’s decision not to receive a report or recommendation from the guardian ad litem. Porter, 23 So. 3d at 449; Carter, 204 So. 3d at 759; Kaiser, 281 So. 3d at 1142. The issue is also procedurally barred because Sylvia failed to fully brief it and failed to proffer the guardian ad litem’s recommendation. I would affirm the chancery court’s judgment.

My thoughts:

  • I am persuaded by Justice Ishee’s reasoning. I think the chancellor intended this to be a discretionary appointment, and he changed the GAL’s role as the S.G. case had actually encouraged. Most significantly he did so only after three days of testimony and interviews with the children.
  • You can avoid a similar problem simply by asking your chancellor to include in the order appointing the GAL a finding whether it is discretionary or mandatory. Or, if you prepare the order, make sure you specify whether it is discretionary or mandatory.
  • This case highlights the importance of including more than mere allegations in your pleading if you are serious about charging abuse or neglect. You’ve got to give the judge facts that would be sufficient to support a case in Youth Court.
  • You should read ¶52 carefully, then copy it, print a few copies, and tape it to your computer screen, bathroom mirror, and your forehead; the concept is that important. If the judge excludes your evidence, you must make an offer of proof, aka proffer, or you may not bring it up on appeal. It’s enshrined in MRE 103(a). I’ve posted about this numerous times. When you try a case, you must be mindful that only part of your job is to persuade the chancellor; you also are making a record to win on appeal.

 

 

 

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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