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.

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.

How I Handle GAL Appointments

June 26, 2014 § 3 Comments

One of the things I swore that I would address as soon as I took the bench was the disorganized state of GAL appointments in our district.

At the time — this was before GAL certification was required — there was no uniformity in qualifications, requirements or expectations. Most appointees had no clue what they were supposed to do. Written reports were seldom filed. Months of inaction would be compounded by months of inattention. A GAL-appointment order typically said no more than that the individual was appointed. No deadlines, no specification of what duties were required. No delineation of the GAL’s role.

So I crafted an order that spelled out exactly what the GAL’s role would be, and what the GAL was authorized to do. I set a deadline for a written report, and always set a conference with the attorneys shortly afterward, to see whether or not the report will settle the case.

One feature of my approach is that I appoint the GAl to serve as a special master per MRCP 53. Your judge may reject that approach, but it has worked well here.

Below is a generic form of the order. I am providing it to you in case you might find it useful in your own cases if your chancellor lets you prepare the order (I insist on doing my own). Here it is:

ORDER APPOINTING

GUARDIAN AD LITEM

This civil action came before the court on the motion of plaintiff for appointment of a guardian ad litem. The court now finds that appointment of a qualified guardian ad litem is required to protect the best interests of the minor child named herein, due to allegations of neglect, pursuant to Section 93-5-23, Mississippi Code 1972, as amended.

Now, therefore, it is

ORDERED AND ADJUDGED as follows:

1. Jane Doe, Esq., is hereby appointed as guardian ad litem to serve as a special master under Rule 53, MRCP, to investigate and report to the court as to the interests of the minor children: Stu Smith, born May 23, 2012; Sue Smith, born August 21, 2005; and Lou Smith, born February 7, 2009. The Court finds that the said Jane Doe has completed the requisite training and is otherwise qualified, without interest adverse to the minor children herein. The Court has adequately instructed the said Jane Doe on the proper performance of her duties.

2. The guardian ad litem is hereby ordered and directed to investigate, make recommendations to the Court and enter reports as to the best interests of the minor children.

3. The guardian ad litem is hereby authorized and empowered to review and copy any and all records, including, but not limited to, educational, medical, psychological and psychiatric records, financial and banking records of every kind and nature, any protective service reports and/or contacts, pertaining to the aforesaid minor children, all of which information shall be maintained as confidential by the guardian ad litem, except upon further order of this court. A certified copy of this Order shall be presented by the guardian ad litem to all third parties from whom information is requested, and shall serve as authority to release such information to the guardian ad litem.

4. The guardian ad litem is expressly authorized to communicate directly with each party in this case, and shall not be required to communicate through counsel. The guardian ad litem is directed to send a copy of all correspondence with each party simultaneously to that party’s counsel of record.

5. Each party is hereby ordered and directed to provide the guardian ad litem, in writing, within five (5) days of the date of this Order, with the following information:

a. A brief statement of the party’s position on the issues of child custody, placement and support;

b. A copy of each document in the party’s possession upon which the party relies to support the party’s position on child custody, placement and support, including, but not limited to, psychological or other professional reports or records;

c. A list of all witnesses, including, but not limited to, medical and mental health professionals, who have information supporting the party’s position on child custody, placement and support, providing for each the name, address and telephone number;

d. A list of the party’s employers for the preceding five (5) years, together with a statement of the work performed, hours and days regularly worked, and gross and net pay.

e. A list of all counsellors, psychiatrists, psychologists and other mental health professionals with whom the party and/or the minor children have consulted within the past five (5) years;

f. A list of each street address at which the party has resided within the past five (5) years;

g. The names, addresses and telephone numbers of three (3) references, other than relatives, with whom the guardian ad litem may discuss the party’s parenting ability and relationship with the minor children.

6. Each party is hereby ordered and directed to cooperate fully with the guardian ad litem and to provide the guardian ad litem with truthful, accurate information promptly when requested to do so. This is a continuing order for disclosure, and the court may refuse to allow the introduction into evidence of information that was not provided to the guardian ad litem contrary to this Order, unless good cause is shown.

7. The guardian ad litem is hereby specifically vested with all powers set out in MRCP 53(d) and (e).

8. The guardian ad litem is hereby ordered and directed to file a written report with the Chancery Clerk of _______________ County, Mississippi, including recommendations as to the best interest of the minor children with respect to custody. The report shall be filed with the clerk and simultaneously served on all parties on or before the _____ day of _________________, 2014. The guardian ad litem’s report shall address at least the following items, subject to any conditions imposed by the court:

a. Interviews with the minor children, specifying where and when conducted, and under what conditions;

b. Interviews with parents;

c. Interviews with siblings;

d. Interviews with school or day care officials and personnel;

e. Interviews with social workers;

f. Interviews with church and community contacts;

g. Copies of all pertinent documents and reports that are not confidential;

h. A review of the physical evidence;

i. Review of financial status, if the children has income or any interest in property;

j. Narrative of personal observations of the children alone, with parents, and at school or in other contexts outside the home.

IT IS FURTHER ORDERED AND ADJUDGED that, pursuant to MRCP 53(g)(2), counsel for the parties, or any unrepresented party, are directed to serve any written objections to the guardian ad litem’s report on the guardian ad litem and counsel opposite within ten (10) days of service of the guardian ad litem’s report.

IT IS FURTHER ORDERED AND ADJUDGED that the guardian ad litem’s report, along with any written objections timely filed shall be admitted into evidence and considered by the court on hearing of this matter.

IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff, as moving party, is hereby ordered to deposit with the court the sum of $1,500 on or before the 30th day of June, 2014, as a deposit against the fees incurred for the guardian ad litem’s services. Allocation of the guardian ad litem fees between the parties shall be adjudicated in the final judgment in this case.

IT IS FURTHER ORDERED AND ADJUDGED that this matter is set for a status conference with the court on the _____ day of ____________________, 2014, at ______, ___.m., and all counsel and parties are ordered to be and appear before the Chancery Court of Lauderdale County, Mississippi, in the Lauderdale County Court House in Meridian, Mississippi, for a conference on said date at said time, or as soon thereafter as the matter may be taken up.

SO ORDERED AND ADJUDGED this the day _____ day of ________________, 2014.

Notice that the report shall be introduced. That feature puts the burden on the judge to spell out if there are parts of it that the judge did not rely on or find to have probative weight, such as hearsay. And it does not preclude objections. But it does allow for the GAL’s conclusions and recommedations to be put before the court.

As they say about the speed limit in Italy, this is merely a suggestion. You may find parts of it fit your situation exactly, while other parts just won’t work.

Maxims: Equity Will Act for the Disabled

October 14, 2013 § Leave a comment

It is a fundamental function of chancery court to protect those who can not protect themselves, either because of mental or physical disability or because of legal disability.

The maxim that confers this power is that “When parties are disabled, equity will act for them.”

Judge Griffith lays it out (with paragraphing added):

Infants and persons of unsound mind are disabled, under the law, to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability.

Thus it is that through the agencies of next friends, guardians ad litem, masters and the like the court acts with all care and solicitude to the preservation and protection of the rights of infants and persons non compos mentis; will not permit them to be proceeded against except upon due legal process actually served in the manner provided by law; will take nothing actually confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers and even unnatural parents, and will in general take all necessary steps to conserve the best interests of these wards of the court. Griffith, § 45, p. 48. 

That is some strong language that reflects the breadth of the chancery court’s power to intervene for the benefit of those who cannot protect their own interests. Case law echoes Judge Griffith’s use of the term “superior guardian” time after time. It’s a bedrock concept of chancery jurisdiction. 

The Mississippi Constitution, § 159, vests chancery court with original jurisdiction in “Minor’s business” and “Cases of idiocy, lunacy, and persons of unsound mind.” The most recent case illustrating the constitutional dimensions of the chancery court’s power is DHS v. Watts, handed down December 6, 2012, in which the MSSC resolved a question of disputed jurisdiction between a chancery court in one county and a youth court in another county.

I previously posted here and here on the scope of the disabilities of minority.

GAL UPHELD

April 25, 2013 § Leave a comment

GAL’s have a difficult job. Both sides in a contested child-custody case try to pull them into their respective camps, while the GAL is trying hard to maintain impartiality. The parties try to show only their good side and hide the bad, while the GAL has to penetrate the fog of misinformation to detect the truth. The GAL spends hours (often many of them uncompensated) developing the information that the court will need to make a proper decision. And then, when it comes time for trial, one side, or even both sides, will castigate and vilify the GAL and her report, questioning her conclusions as unsupported, or one-sided, or an outright lie. On appeal the GAL is portrayed as biased, prejudiced, arbitrary, capricious and lacking good judgment, in league with the devil (i.e., the judge) who ruled against the disappointed party.

That’s pretty much what happened in Lindsey v. Willard, decided  by the COA April 9, 2013. Jason, stung by the GAL’s unfavorable report as to his case to retain custody of his son, Tyler, and the chancellor’s reliance on it, appealed. Judge Roberts’ opinion affirming states:

¶18. Jason has a litany of complaints regarding the way the guardian ad litem conducted her investigation. According to Jason, the guardian ad litem was derelict in her duties, and she “abandoned her obligation” to conduct a proper investigation. Jason claims the guardian ad litem improperly obtained information from third parties, rather than going to more appropriate sources. For example, Jason complains that the guardian ad litem asked Jason’s father, Jimmy, whether Jason paid Mandy’s bills while Jason’s own bills went unpaid, but the guardian ad litem never asked Jason whether that was true. Additionally, Jason laments that the guardian ad litem accepted Jimmy and Tania’s word regarding the paternity of Mandy’s baby, but the guardian ad litem never asked Mandy whether her baby was fathered by someone other than Jason. Jason raises several other similar allegations.

¶19. The guardian ad litem was appointed in an investigatory capacity. She was not appointed to represent Tyler. Thus, the guardian ad litem was “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.” S.G. v. D.C., 13 So. 3d 269, 282 (¶57) (Miss. 2009). Prior to making a recommendation, the guardian ad litem must “provid[e] the court with all material information [that] weighs on the issue to be decided by the court, including information which does not support the recommendation.” Id.

¶20. The chancellor contacted the guardian ad litem on June 14, 2011. The guardian ad litem began her investigation soon afterwards. She interviewed fourteen people and “evaluated all documents filed in this matter and all [of the] correspondence [that was] given to her.” On July 19, 2011, the guardian ad litem filed her report. Based on the totality of the circumstances, the guardian ad litem recommended that the chancellor find that there had been a material change in circumstances adverse to Tyler’s best interests. The guardian ad litem then recommended that Tania have physical custody of Tyler during the school year, and that Jason have physical custody of Tyler during the summer.

¶21. Jason’s attorney vigorously cross-examined the guardian ad litem during the July 2011 hearing. At that time, the guardian ad litem had seventeen years’ experience as a guardian ad litem for the Itawamba County Youth Court. She had also worked for the Itawamba County Department of Human Services. The guardian ad litem explained that she asked Jason’s father, Jimmy, several questions without verifying Jimmy’s responses with Jason because she did not want to further harm Jimmy’s relationship with Jason. The chancellor heard the guardian ad litem’s explanations regarding the manner in which she conducted her investigation. Jason and Mandy also testified during the July 2011 hearing, as did Tyler. Consequently, the chancellor heard what Jason and Mandy would have said in response to the questions Jason’s attorney thought the guardian ad litem should have asked. Finally, the chancellor did not “rubber stamp” the guardian ad litem’s report. Although the chancellor reached the same conclusions as the guardian ad litem, the chancellor did so based on her own analysis. We find no merit to Jason’s claim that the guardian ad litem’s investigation somehow resulted in reversible error. It follows that we find no merit to this issue.

What I like about this decision is that it upholds what was apparently a good effort by an experienced GAL who knew what to devote her time to for the most productive results.

GAL investigations and reports are not required to be perfect. They are required to be thorough, impartial, and for the best interest of the child. It’s refreshing to see the appellate courts recognizing the difficult role that GAL’s play in these difficult decisions.

PROFESSIONALISM AND THE GAL

April 23, 2012 § Leave a comment

Mississippi Supreme Court Justice Randy Pierce and I were invited to address the Ole Miss GAL Certification CLE program not too long ago about “Professionalism and the Guardian ad Litem; A View from the Bench and Beyond.”

Here are the professionalism principles for GAL’s that we came up with. I hope they provide some food for thought for you GAL’s laboring in the vineyard, and some general standards for judges who deal with GAL’s.

1. Competence. A GAL is required to maintain the required certification. Beyond that, the GAL must maintain CLE and demonstrate knowledge, skill, thoroughness and preparation.

2. Promptness. Complies with the court’s deadlines and does everything possible to move the case forward. A GAL does not delay the cause without justification.

3. Diligence. Interviews all witnesses and reviews all relevant evidence to ensure that the appropriate action is taken for the best interest of the children. Investigates to discover any pertinent information not disclosed by the participants. A GAL does not neglect to perform the task assigned. Timely submits a written report addressing all relevant considerations.

4. Fairness. The GAL’s duty is to protect the best interest of the children, not to advocate for any of the litigant parties. The GAL must have no conflict of interest. The GAL maintains neutrality and the appearance of impartiality consistent with this duty.

5. Zeal in protecting the best interest of children. Pursues the best interest of the children actively through reasonably available means permitted by law and the rules of professional conduct.

6. Knowledge of the applicable law. Is current in the law applicable to the case, and develops legal authority to support the GAL report.

7. Candor with the court. Communicates with the court through properly noticed pleadings as to all matters affecting the best interest of the children, the cooperation of the parties, any impropriety, and need for a change in the role assigned.

8. Fidelity to the role assigned. Acts within the scope of the role assigned by the court.

9. Independence. Maintains and exercises independent judgment about the best interests of the children.

10. Willingness to accept appointments. Rule 6.2 of the Rules of Professional Conduct requires that lawyers not seek to avoid appointments except under certain specified conditions. The fact that the appointment would be controversial or unpopular is not in and of itself a disqualifying factor.

A MODEST PROPOSAL — FOR GAL’S

March 5, 2012 § 5 Comments

[NOTE: This post has no relationship to Jonathan Swift’s 1729 Modest Proposal that the poor do a service to society by eating their young]

This modest proposal has to do with guardians ad litem (GAL).

In the 12th Annual GAL Certification CLE seminar sponsored by Ole Miss on March 2, 2012, Justice Randy Pierce suggested to those present that they consider forming an association to promote your interests. I second that motion.

In the past several years, we have seen: the dawn of GAL certification, which has perceptibly improved the quality of GAL work; the SG v. DC decision, which defined the role of the GAL and directed the courts in how to assign the role; and the McDonald case, which some find troubling, but which may help in the long run to define how the GAL goes about doing his or her job (Note: a pending bill, HB 949 proposes that GAL reports and testimony may include hearsay as long as all parties have notice and the opportunity to rebut any adverse information).

Now it’s time for the next step. GAL’s in good standing need to form your own state-wide organization. Some things you could try to accomplish together:

  • Persuade the MSSC to adopt rules governing the appointment of GAL’s by trial courts and conduct of GAL work, and have some input in the process;
  • Adopt professionalism standards for GAL’s;
  • Monitor, propose and affect legislation dealing with GAL’s;
  • File amicus briefs in cases like SG and McDonald that might affect the work of the GAL;
  • Establish a listserve with access limited to members to discuss and share insights, experiences and helpful information about your job.
  • Gain greater input into certification training.
  • You all have compensation issues. By sharing information and experiences, you may be able to come up with ways to address this nettlesome problem.

I’m sure there would be plenty more you could do, but that’s a starting point. As individuals, you are scattered around the state with differing experiences in different courts before different judges. Some of you feel isolated and like you have no support to tap into, I am sure. An association would help overcome that.

I think Justice Pierce is right on target with this. You’ve come a long way. Now it’s time to take it to the next level.

COMING TO GRIPS WITH McDONALD

June 20, 2011 § 6 Comments

I don’t think it’s an overstatement that the Mississippi Supreme Court’s decision in McDonald v. McDonald, 39 So.3d 868 (Miss. 2010), set chancery court practice vis a vis guardians ad litem (GAL) on its proverbial ear.  And it’s not so much what McDonald held as what it hinted at.

Before McDonald, it was common practice to allow a GAL to investigate, file a report, and testify to the results and findings of the investigation, including hearsay, and make a recommendation.  After all, most of what a GAL unearths is based on hearsay: the GAL interviews the children, neighbors, school teachers, parents, relatives, and reviews medical records and school records.  In my experience most chancellors allowed the GAL to testify to the facts disclosed in the investigation, and I don’t recall anyone ever objecting to the hearsay.  Most lawyers used the GAL’s report as a guide for what evidence would prove or disprove the case.  It was a good system that allowed a qualified person as an arm of the court to look behind the positions of the warring parties and to pierce the veil of partisanship.  I have observed on more than one occasion in contested child custody cases that the momma and dady are each zealously pursuing their own positions, but no one is looking out for the best interest of the children.  The GAL’s role as arm of the court was a perfect complement to the chancellor’s role as superior guardian of the children.  Frankly, it worked pretty well when a well-qualified and diligent GAL was involved.  When the GAL proved to be less than diligent, the chancellor was free to discount or even disregard the findings and recommendations.

Enter McDonald.  In that case, the mother in a child custody modification case objected to the GAL’s oral testimony, ” … stating that if the teachers and others being quoted by the GAL had something to report, they should have been required to be there. The court responded that
GALs are allowed by “historical practice” to offer hearsay testimony, and overruled the objection. ”  McDonald at 884.

The Supreme Court disagreed and pointed out without expressly holding that a GAL’s oral hearsay testimony should be excluded.  Justice Dickinson’s specially concurring opinion was even more blunt when he stated that MRE 1 expressly states that the evidentiary rules do apply in chancery court.  End of dicussion for him.

The court did not extend its hearsay proscription to GAL written reports, however.  The following language, beginning on page 882, is instructive:

“Jennifer argues that the GAL exceeded the proper role of a GAL by offering hearsay testimony, as well as taking ‘on a role as a litigant/expert’ by providing a written report to the court, making recommendations, discussing the views of the court-appointed counselor, filing a motion, testifying, examining witnesses, and meeting ex-parte with the chancellor. Other than offering hearsay testimony as discussed below, the GAL was simply following the provisions of the GAL statute and the pronouncements of this Court. This Court dealt recently with a similar issue in S.G. v. D.C., 13 So.3d 269 (Miss.2009), an opinion handed down after the briefs were filed in this appeal. The S.G. Court stated the following regarding the proper role of a GAL:

[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 282.

The GAL in the case sub judice did not offer the type of testimony criticized in S.G. See id. at 274 n. 5.  This GAL reported on matters required by her appointment, and consistent with a GAL’s duties as outlined in S.G. Id. at 282.

The statute’s provision that a GAL “shall have the duty to protect the interest of a child for whom he [or she] has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest,” is consistent with the traditional roles required of a GAL, which predate the enactment of the statutes. Miss.Code Ann. § 43-21-121(3) (Rev.2009). In In the Interest of D.K.L., 652 So.2d 184 (Miss.1995), this Court held that a GAL had failed in his duties by simply deferring to a therapist’s recommendations, and not submitting his own recommendation as to the best interests of a child. Id. at 188. The D.K.L. Court stated that the GAL ‘did not have an option to perform or not perform, rather he had an affirmative duty to zealously represent the child’s best interest.’ Id. In In the Interest of R.D., 658 So.2d 1378 (Miss.1995), this Court held that “children are best served by the presence of a vigorous advocate free to investigate, consult with [the children] at length, marshal evidence, and to subpoena and cross-examine witnesses.” Id. at 1383 (quoting Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 444 (S.C.Ct.App.1990)). See also M.J.S.H.S. v. Yalobusha County Dep’t of Human Serv. ex rel. McDaniel, 782 So.2d 737, 740-42 (Miss.2001)(GAL failed in his duty by relying on DHS records and the recommendations of a therapist and social worker). In D.J.L. v. Bolivar County Department of Human Services ex rel. McDaniel, 824 So.2d 617 (Miss.2002), this Court found no error in a GAL’s cross-examination of witnesses. Id. at 622. The Court also ’emphatically proclaim[ed] to the bench and bar that … the guardian must submit a written report to the court during the hearing, or testify and thereby become available for cross-examination by the natural parent.’ Id. at 623. Therefore, the GAL would have been derelict in her duty to zealously represent the boys’ best interests if she had failed to interview the boys, consider the opinions of experts, marshal evidence, make an independent recommendation, question witnesses, submit reports, and make herself available for cross-examination.

The chancellor did not allow the GAL to usurp his role as the “ultimate finder of fact.” Id. The chancellor heard all witnesses, read all the
reports, and made his own decision based upon independent findings of fact.  Thus, we find this portion of Jennifer’s argument to be without merit.”

Footnote 7 on page 884 states:

“Hearsay testimony should not to be confused with a GAL’s written reports, which sometimes, by their very nature, will include statements, which, if offered into evidence at trial to prove the truth of the matter asserted, would be inadmissible hearsay, unless they qualify under one of the exceptions to the rule against hearsay. Any such inadmissible hearsay, however, would not require exclusion of the entire report. This issue is not before the Court this day.”

I have heard reactions to McDonald that just about cover the ball park.  One chancellor has said that he and the other judge in his district no longer appoint GAL’s unless they are required by statute because they feel that McDonald has rendered the GAL role ineffective and superfluous.  I have heard chancellors confess that they don’t have any idea where to go post McDonald when it comes to GAL’s.  And GAL’s have come to me and said they are now quite confused as to what they can and can not do.

The GAL system is far too valuable to chancery court to be relegated to the trash heap.  At least for the time being, chancery court maintains its historical distinction from circuit in that the chancellor has a high duty to act in the best interest of a child, and to have a greater role at trial than to be a mere referee blowing the whistle and throwing penalty flags for hearsay transgressions; the chancellor’s duty is to ensure that the best interest of a child is protected, even when the parties themselves do not do so.  The GAL has for many years given the chancellor a practical, effective way to meet his or her responsibility.

So how do we reconcile McDonald with the traditional role of the GAL?  I think it comes down to the following for the party who will make positive use of the GAL recommendations:

  1. Plan to qualify and tender the GAL as an expert.  Ask the court at the outset of trial for leave to allow the GAL to remain in the court room in her role as an expert, if the rule is invoked.
  2. 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.
  3. Finally, call the GAL as an expert witness and offer her report into evidence.  She should qualify as an expert because of her legal training and experience, plus the fact that every GAL now must undergo special training and maintain certification.  And as for her testimony, remember that, under MRE 703, “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”  Moreover, with all of the factual evidence already in the record, the GAL is free to comment on it.

But, you say, this will result in more cumbersome, longer and more expensive trials in custody actions with GAL’s.  You are certainly right, but that is what the supreme court is directing us to do.

My understanding is that the GAL in McDonald was qualified as an expert.  The opinion in McDonald did not explain why Rule 703 was not an adequate basis for her hearsay testimony that ” … need not be admissible in evidence.”  So until the MSSC takes another shot at the issue, I interpret McDonald to mean that the GAL may include hearsay in his report, and may testify to it NOT to establish the truth of the matter asserted, but to establish the basis for his recommendations.  In other words, you will have to call the witnesses and have them testify, and put the documents, photos and records in via competent testimony if you want or need those facts to be established in the record.

For now that is the way I will approach McDonald.

TWO CLE PROGRAMS TO CHECK OUT

September 29, 2010 § Leave a comment

Chancery Court Practice Seminar October 22

Mississippi College School of Law will host a three hour Chancery Court Practice seminar on October 22.  Judge Cynthia Brewer, Judge Dan Fairly and Judge Patricia Wise will present their Views from the Bench and Rules of Court. The seminar has been approved for three hours of CLE credit all of which are considered ethics hours. Breakfast and late registration will begin at 8:30 a.m. The seminar will conclude by noon.  For more information please contact Tammy Upton at 601-925-7107 or tupton@mc.edu. Registration may be taken online at: www.law.mc.edu/cle

12th Annual Guardian Ad Litem and Child Advocacy CLE November 5

Mississippi College School of Law will host the 12th Annual Guardian Ad Litem and Child Advocacy CLE, Friday, November 5.  The event will take place on the campus of MCSOL, located at 151 East Griffith Street in Jackson.  This CLE event has been approved for six (6) hours of CLE credit including one (1) hour of Ethics.  This course has also been approved by the Mississippi Judicial Council for annual GAL certification and re-certification. Breakfast and lunch will be provided on site.  Registration begins at 8:30 a.m.   For more information, please contact Tammy Upton at 601-925-7107, or tupton@mc.edu.  Please use the following link to register online: www.law.mc.edu/cle

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