The Perils of Guardian Ad Litem Appointments
| Publication year | 2020 |
| Pages | 0018 |
The Perils of Guardian ad Litem Appointments
The guardian ad litem, an officer of the court, holds a position of trust with respect to the minor child at issue and is duty bound to exercise due diligence in performing her (or his) role under the Code. Their work, generally considered valuable, "is not without legal and ethical uncertainty. . . ." This article speaks to potential complications that can arise.
BY RACHEL A. ELOVITZ
Our law views children, in most regards, as legally incapacitated. They are thought to lack the maturity, life experience and sound judgment that adults enjoy in making fundamental life decisions. This belief informs our legal tradition. It is why our common law has long recognized the fundamental right of parents to speak and make decisions for their minor children— and why minors, absent limited circumstances, are unable to contract,[1] marry,[2] sue or be sued in their own names;[3] appeal a civil case without the aid of a guardian or next friend;[4] or refuse medical or surgical treatment for their own bodies.[5] The nature of childhood, in the eyes of the law, is for the most part wanting and weak, requiring the assistance of one sui juris, which the law explains as follows:
The wants and weakness of childhood render maintenance by someone other than the child himself indispensable, and the voice of nature indicates the parent . . . as the fittest person to afford it ....The municipal laws of all well regulated societies take care to enforce this duty; though Providence has done it more effectually by implanting in the heart of every parent that unquenchable affection which not even the deformity of person and mind, nor the wickedness, ingratitude, and rebellion of children can totally extinguish.[6]
When that unquenchable affection, the innate bond between parent and child, is inexplicably absent or lacking, or a parent's natural desire to protect his or her own flesh and blood takes a back seat to incapacity, abusive inclination or neglect, the state acts to protect one of its most vulnerable populations. Nowhere is this more evident than in abuse and neglect cases, in which the court routinely appoints guardians ad litem as "protector[s] of a child's best interest."[7]
The practice of appointing a guardian ad litem (GAL) to represent the best interests of minor children has been prolific since the 1974 passage of the Child Abuse Prevention and Treatment Act (CAPTA),[8] the goal of which was to ensure adequate representation for children at issue in state-initiated abuse and neglect cases ("deprivation" or "dependency"[9] cases). GAL representation was subsequently expanded to other proceedings, including custody and visitation.
In recent years, the utilization of GAL appointments has become even more widespread, resulting in GALs performing diverse roles that include everything from fact investigator, mental health evaluator, next friend attorney, family mediator and child's attorney.[10] Their work, generally considered valuable, "is not without legal and ethical uncertainty. Incompatible ethical mandates, sparse statutory guidance, and undeveloped case law compound these quandaries."[11] Complicating matters further, the role, appointment, training and compensation of GALs vary greatly state to state,[12] county to county, judge to judge and case to case.[13] In fact, a study by the U.S. Department of Health and Human Services undertaken to evaluate the effectiveness of the guardian ad litem system found that "a lack of legislative guidance and disagreement among and within States regarding how best to provide this representation has resulted in a chaotic and inconsistent system of GAL representation."[14]
In dependency proceedings alone, there are courts that "use only attorney guardians, others [that] use a combination of attorneys and CASAs or other trained citizens and volunteers, and yet others [that] use CASAs or trained citizens and volunteers exclusively."[15] Just within the greater metropolitan area of Atlanta, Georgia, "Fulton County [Juvenile Court] appoints legal counsel for each child who is the subject of a deprivation petition and may not appoint a guardian ad litem, whereas DeKalb County Juvenile Court appoints counsel to serve in a dual role as attorney and best-interest advocate."[16] The distinction between the role of the GAL and Child Advocate is one with a difference. "A child's attorney, unlike a [GAL], must attempt to maintain a normal client-lawyer relationship with the child, and the attorney must defer to the child's wishes regarding the ultimate objectives of representation."[17] A GAL, however, "is bound to protect the best interests of the child, even in contravention [to] the child's personal desires."[18] Nonetheless, there are jurisdictions, like Georgia, that allow a GAL to serve in a dual capacity, a practice that has been characterized as "ethically and legally problematic, insofar as it permits GALs to act simultaneously as attorneys and witnesses."[19]
In dependency proceedings alone, there are courts that ?use only attorney guardians, others [that] use a combination of attorneys and CASAs or other trained citizens and volunteers, and yet others [that] use CASAs or trained citizens and volunteers exclusively.?
In Georgia, a juvenile court judge is required to appoint a GAL for a child who is alleged to be dependent,[20] meaning a child who is in need of protection from the court because of abuse or neglect; a child without a parent, guardian or legal custodian; or a child who has been placed for care or adoption in violation of law.[21] A superior court judge in Georgia, however, is authorized (not required) to appoint a GAL to assist in domestic relations cases involving minor children (e.g., divorce and custody actions, legitimation actions, third party custody actions and grandparent visitation actions),[22] in which the GAL has been viewed "as an agent or arm of the court."[23] The concern behind the appointment is that without it, "the trial court, charged with rendering a decision in the 'best interests of the child,' has no practical or effective means to assure itself that all of the requisite information bearing on the question [of custody] will be brought before it untainted by the parochial interests of the parents."[24] The court, appreciably, cannot conduct its own investigation, whereby the GAL "functions as the court's investigative agent, charged with the same ultimate standard that must ultimately govern the court's decision."[25]
At the federal level, the appointment of a GAL is a "procedural question controlled by Rule 17(c)"[26] of the Federal Rules of Civil Procedure (FRCP), which allows for such an appointment "only in the case of 'an infant or incompetent person.'"[27] FRCP 17(c) does not make a GAL appointment mandatory; it is sufficient if the court believes that the person's interests are "otherwise adequately represented and protected."[28] The judge, however, may not "ignore or overlook such a fundamental requirement for the protection of infants."[29] This rule has been interpreted to mean that
(1) as a matter of proper procedure, the court should usually appoint a guardian ad litem; (2) but the court may, after weighing all the circumstances, issue such order as will protect the minor in lieu of appointment of a guardian ad litem; (3) and may even decide that such appointment is unnecessary, though only after the court has considered the matter and made a judicial determination that the infant is protected without a guardian.[30]
The GAL, an officer of the court,[31] holds a position of trust with respect to the minor child at issue and is duty bound to exercise due diligence in performing her (or his) role under the code.[32] The most common GAL role is that of investigator, which requires the GAL to "[review] documents, reports, records and other information relevant to the case, meeting with and observing the children in appropriate settings, and interviewing the natural parents . . . therapists for both children and parents, and any other person, such as school personnel, with knowledge relevant to the case."[33] The GAL consolidates information gathered, augmented by his or her own observations and the results of any psychological testing,[34] which the GAL then presents to the court in the form of a written report, including recommendations concerning custody, visitation and special parenting time parameters.
It is axiomatic that in drawing conclusions about a child's best interest, a GAL should listen to and consider a child's concerns. Doing so, however, requires the GAL to first establish a basic level of trust with the child and an ability to communicate with the child in such a way that the child feels safe being open and honest with the GAL. Establishing the necessary trust can be made difficult when parents instruct the child not to speak about certain matters, or the child does not speak easily to strangers, or the child tries to please one or both of his parents by manipulating the interview to achieve that end.[35] "Warnings [by the GAL or from parents] of non-confidentiality only exacerbate this difficulty."[36] The resulting risks are minimally twofold. One is that a GAL, particularly one without sufficient training or insight, submits a report that is quiet on the child's concerns, such that the child does not have a voice in a decision that meaningfully impacts him or her. The second is that the GAL's report speaks to concerns articulated by the child—but fails to identify or articulate when, because of an unhealthy family dynamic, a history of domestic violence, mental health issues, situational anxiety, parental alienation, or any other matter or reasons, the child's concerns may have been influenced by a desire to...
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