Missouri Family and Divorce Lawyer Blog

Guardian ad Litems

Tonight I am going to voice an opinion about other attorneys.  I'm talking about attorneys that have been appointed as guardian ad litems (GALs) to represent children in divorce, custody, juvenile, or probate cases.  The way some of these GALs represent the children, or rather do not represent the children, bothers me.  Let me give an example of what bothers me.  Recently I received a call from a father whose daughter was in trouble with the Juvenile Office for skipping school and classes and a few minor items.  There was to be  a hearing the next afternoon to determine whether the daughter stayed with him or left the state with her mother.  Since the father called right when I was leaving the office for another appointment I had to meet with him the next morning.  Normally I do not take cases on such short notice but I did not like what I was hearing.  I met with the father and it was agreed that we would try to get a continuance on the hearing and, if that was not possible, I would do my best with the little information he had and the evidence that was presented in court.    At the hearing the continuance was denied so we went forth with what we had.  The hearing turned out well for my client and his daughter but I left the hearing disturbed by the GAL.  This GAL had never spoken with my client or the daughter (the one the GAL was appointed to represent), never asked a question at the hearing, and yet she recommended to the court that it follow the Juvenile Office's recommendation.  I am disturbed by this because this GAL did not do her duties to the child and should not have been making any recommendations to the court.  If this had been the one and only time I have seen this happen, maybe it would not have bothered me so much.  It was not the first time and it is becoming more and more the norm from what I am seeing.  I would like to see something done to remove these GALs that do not do their duties and to get more attorneys to do what they have been appointed to do.

I approached this subject on a list serve that I belong to.  Turns out that other attorneys have noticed the problem with the GALs and they made several suggestions to try to combat the problem.  Some, however, pointed out that the GALs do not make much money and perhaps we shouldn't expect that much from them.  To this I say - bull-hockey!  I have been in practice for almost 17 years and I have been appointed GAL in just about every type of case that there is need for one.  I have lost tons of money from not being paid for the time I have put into a case or from not receiving an hourly rate from the court that equals my usual rate.  Do I think this excuses me from my duty to a child to independently investigate the matter and report to the court what I think will be in the best interests of the child?  Not on any day of the week.  My duty is to that child and if I can't do what needs to be done to make a well-informed, knowledgeable report to the court, then I do not need to be representing that child.  Who needs my knowledge and skills as a lawyer more than a child?  Who needs to be protected more than a child?  I may lose money on being appointed as a GAL, but if I do my duty to that child and investigate the matter, then I will sleep well at night knowing I did what I could to keep that child protected from whatever evils caused a GAL to be appointed.

I was discussing the case I mentioned earlier with another attorney.  This attorney does a lot of GAL work.  In fact that is about all the attorney does.  I made mention that the GAL in this case had never talked to the dad or even to the daughter whom the GAL was appointed to represent.  This attorney told me he/she does not normally talk to the child or the parents unless they show up at meetings at the juvenile office or child services  that the attorney is scheduled to  attend.    I guess if there are no meetings scheduled the attorney does not speak with them.  Where is the independent investigation in this?  All the attorney is hearing is one side.  Do I want this attorney to be the GAL in one of my cases?  A definite no.  It's my understanding that this attorney makes money by being appointed to several cases that will be heard on one day, kind of like a cattle call.  If this attorney does not independently investigate the matters and shows up for the hearings to make the recommendation to the court, I'd call that easy money.

So what do we do to change the way these GALs represent the child?  For one, start disqualifying the ones that do not do their duties to the child.  If you are represented by counsel your attorney should have a general knowledge of the attorneys that make good GALs and the ones that do not.  If an attorney has been appointed as a GAL in your case and you or your attorney know that this attorney will not do his or her duties, disqualify that attorney.  Each party has the right to one automatic disqualification of a GAL if done within ten days of the appointment.  After that you will need to disqualify the GAL for cause, including the GAL not doing his or her duty to the child. 

What are these duties that I have been discussing?  The Missouri Court of Appeals, Western District, had this to say about GALs and the duties involved:

Davis v. Schmidt, 210 S.W.3d 494 (Mo.App.W.D. 2007) :

Allocation of Guardian Ad Litem Fees to the Parties
[19] As stated supra, because Father made allegations that Mother had abused and neglected Emma, the trial court appointed attorney Brad Grill FN13 as Emma's guardian ad litem pursuant to section 452.423.2, RSMo Cum.Supp.2004. “The philosophy underlying the statute is that where abuse or neglect is alleged, the child has rights independent of either of the parents, and these rights are entitled to representation.” Taylor v. Taylor, 60 S.W.3d 652, 655 (Mo.App. E.D.2001) (emphasis added).

FN13. Mr. Grill filed a motion to be added as a party to this cause on appeal, which this court sustained on June 27, 2005.

[20] [21] [22] [23] [24] “The role of the guardian ad litem involves more than perfunctory and shadowy duties.” In the Interest of J.L.H., 647 S.W.2d 852, 861 (Mo.App. W.D.1983). Rather, a guardian ad litem serves as “the legal representative of the child at the hearing, and may examine, cross-examine, subpoena witnesses and offer testimony.” Section 452.423.3(1), RSMo Cum.Supp.2004 (emphasis added). “The guardian ad litem also has a duty to conduct all necessary interviews with people having knowledge or contact with the child, and he may interview the child if appropriate.” Baumgart v. Baumgart, 944 S.W.2d 572, 578-79 (Mo.App. W.D.1997); see also Section 452.423.3(2), RSMo Cum.Supp.2004. A guardian ad litem's principal allegiance is to the court, and his function is to advocate what he believes to be the best interests of the child by providing the court requisite information bearing on those interests untainted by the parochial interests of the child's parents. Guier v. Guier, 918 S.W.2d 940, 950 (Mo.App. W.D.1996); In re Marriage of Patroske, 888 S.W.2d 374, 384-85 (Mo.App. S.D.1994). “Even though the court is not bound by the opinion or recommendation of the GAL, it is imperative that the guardian ad litem investigate and have input on the perspective of the child's best interest and [that] this be presented to the trial judge.” Portwood-Hurt v. Hurt, 988 S.W.2d 613, 619 (Mo.App. W.D.1999) (emphasis added) (internal quotation marks and citation omitted). In fact, given the nature of Father's multiple allegations of abuse and neglect and the extensive testimonial, documentary, photographic, and videographic evidence he adduced at trial to support them, “this case begged for careful consideration by the appointed guardian ad litem.” Keling v. Keling, 155 S.W.3d 830, 834 (Mo.App. E.D.2005).

Despite this, the record demonstrates that the trial court received no meaningful evidence from the guardian ad litem. The guardian ad litem was concerned enough about the situation that he moved to intervene as a party to this appeal. He has also filed with this court a report he prepared concerning the allegations below, but we are unable to consider it because it was not presented to the trial court. Despite the fact that the guardian ad litem has the statutory right, under section 452.423.3(1), RSMo Cum.Supp.2004, to offer trial testimony as the legal representative*510 of the child, the record reveals that the trial court never heard from Mr. Grill about the abuse and neglect issues in the case except for only a few minutes just before the close of all the evidence.FN14

FN14. Mr. Grill used the “couple minutes” he was allotted by the trial court to briefly outline the services he had performed as Emma's guardian ad litem, as well as to inform the court as to the number of hours he had spent working on the case (32) and his normal hourly rate for such services ($150).

The only specific factual findings the trial court actually made in this case directly supported Father's claims of neglect. The trial court expressly found that Mother “has in her home 2 dogs that are incontinent and cause a health hazard.” This finding, as well as the court's judgment ordering Mother to remove both dogs from her home and further providing that they “may no longer be permitted inside the home whatsoever,” were supported by extensive and entirely unrebutted testimonial, video, and photographic evidence presented by Father at trial, which showed, among many other things, that: (1) the hair of Mother's two large breed dogs was matted with urine and fecal matter; (2) there were animal urine stains and acid burns located throughout Mother's home, including around Emma's diaper hamper and on other items in her bedroom; (3) Mother's home smelled strongly of animal urine and feces; and (4) there were clumps of dog hair and dander on the floors throughout Mother's home. Furthermore, the Chief Deputy Juvenile Officer for Platte County, Mark Lindsay, who had been appointed by the court to evaluate custody issues, testified at trial that had Mother's home been as depicted in the photographs when he made his home visit in April or May 2004, he would have been required, as a mandatory reporter of abuse and neglect, to make a call to the Missouri Child Abuse Hotline. Mr. Lindsay further testified he had serious concerns about the unsanitary conditions in Mother's home, specifically including animals urinating and defecating on the floor and the presence of animal hair and dander on the floor. The trial court also found that a home inspection conducted by Father's witness, civil engineer Frank Comer, on January 11, 2005, revealed that “certain natural gas lines in [Mother's] home are made of copper and that an electrical line located in the kitchen was not enclosed in conduit,” thereby presenting additional safety hazards. For this reason, the court's judgment required Mother to repair and/or remedy these hazardous conditions by replacing “any current gas lines made of copper in her home with black pipe or other building code compliant material,” as well as to “place in a proper electrical conduit the ... kitchen electrical power line or cord.”

On remand the trial court shall reopen the record and receive substantive evidence from Mr. Grill before rendering its new judgment. See Tipton v. Joseph-Tipton, 173 S.W.3d 692, 694 (Mo.App. W.D.2005); In re Marriage of Mihalovich, 659 S.W.2d 798, 801 (Mo.App. W.D.1983); Hughes v. Bd. of Educ., 599 S.W.2d 254, 256 (Mo.App. S.D.1980).

I think the quote above spells out the duties of GALs very well and much better than I could.  I'd like to thank my fellow attorney, Dan Pingleton, for providing the above quote to me.  Please note these duties and the next time you have a GAL that does not do his or her duties, move to disqualify him or her and request one that will.

What else can you do?  Complain to the presiding Judge in your circuit about the GALs that do not do their duties to the children they are appointed to represent.  After enough complaints the judges may start changing the way they appoint GALs or stop appointing the ones that are not performing their duties.  When you are complaining to the presiding Judge about a specific GAL or GALs in general, also mention in your letter or conversation that maybe the  court should increase the hourly rate or pay for GALs and set better guidelines for seeing that their fees are paid.  And, if you have been ordered by a court to pay a GAL in your case, please see that you do. 

I want to make it clear that not all GALs are bad.  They are some very good ones out there.  My office mate is one who takes his duties very seriously.  If you get one that you know has worked hard on the case to represent your child, no matter how the Judge rules in your case, thank the GAL and let him or her know that you appreciate all the hard work and time that was put into the case.  Remember, the GAL might be just as frustrated with the Judge's ruling as you are.  A thank you can go a long way.

Source:  my experience

Should a Father Regain Custody of a Child When Convicted of Felony Offenses Against Another Child?

If a parent was convicted of sexual abuse, sodomy and rape of two children, ages 5 and 6, before the effectiveness of a statute that would prevent the parent from being reunited with his child or having his child placed in his home because of the conviction, would you want this statute to be applied to the parent?  Recently a case that involved  section 211.038 (Cum. Supp. 2004) was transferred to the Missouri Supreme Court to decide the issue of whether this statute should be applied retroactively.  In In the Interest of A.S.W. the Eastern District of the Missouri Court of Appeals decided that the general interest and the importance of this question should be decided by the Supreme Court of Missouri.

The background of this case is:  in 1998 A.S.W. was born.  His biological father suffered a brain injury from a fall at work in 2000 and had to spend time in rehabilitation.  In 2001 the juvenile office filed a petition to take jurisdiction and custody of A.S.W. because of neglect by the mother.  The juvenile court decided that the father was in no condition physically or mentally to be able to take care of A.S.W. at that time.  In 2002 the juvenile office petitioned to have the parental rights of both parents terminated.  The juvenile court did so.  The father thereafter appealed and the Missouri Supreme Court reversed the termination as to the father because the state had failed to present substantial evidence that additional services would not facilitate the return of A.S.W. to the father.  Thereafter the father filed a petition for writ of habeas corpus and alternative motion to modify the legal and physical custody of A.S.W.  At the same time the foster parents of A.S.W. filed their petition to obtain guardianship of A.S.W. and to change his name.  The juvenile court consolidated these two actions and ruled against the father and in favor of the foster parents.  The father appealed on four different grounds. 

The father alleged in the first ground that the juvenile court failed to follow the Missouri Supreme Court's mandate that A.S.W. be returned to his custody.  The appellate court determined that the Supreme Court did not mandate that the custody be returned to the father, only that the trial court should consider whether additional services could be provided so that the child could be returned to the father.  The trial court heard evidence from several psychologists that the father could not independently care for A.S.W. and that his sister, with  whom the father was living with, did not believe the father needed supervision.  The father also testified that he planned to move out of his sister's home and into one with just him and A.S.W.  The appellate court ruled that the trial court did follow the Supreme Court's order.  The second ground was that the juvenile court's jurisdiction was no longer proper.  The appellate court quickly ruled against the father on this ground because he had  consented to the jurisdiction of the juvenile court when the initial proceedings started.  The fourth ground by the father was that the ruling for the guardianship was against the weight of the evidence.  Based upon all the evidence that the trial court heard, the appellate court determined that there was substantial evidence for this ruling.

The third ground of the father and the one involving section 211.038 is the one that the transfer to the Missouri Supreme Court was made on.  Section 211.039, RSMo (Cum. Supp. 2004) prevents a child from being reunited or placed in the home of a parent who has been convicted of certain felony offenses where a child was involved.  In 1986, before the effective date of this statute, the father pleaded guilty to two counts of sexual abuse in 1st degree, one count of sodomy, and one count of rape.  These charges involved the father's nieces, ages 5 and 6.  The sodomy and the sexual abuse convictions are included in the felonies listed in the statute.  The trial court mentioned this statute in ruling against the father and the father argues that this statute should not be applied retroactively to him.  The appellate court found that the trial court did not rely solely upon this statute in denying the father custody of A.S.W.  The trial court found that the father was unfit and unable to assume duties of guardianship, that A.S.W. would suffer emotional harm if removed from his present home, that the father's physical and mental conditions prevented him from being able to handle A.S.W.'s needs that would result from the emotional harm, that A.S.W. started suffering from nightmares and behavioral changes after the visits with father resumed in 2005, and that several psychologists testified that the father could not independently care for A.S.W.  These findings were enough to rule against the father obtaining custody of A.S.W. but because the trial court mentioned section 211.038 in its determination, the appellate court considered  whether this statute should be applied retroactively.  It determined that it has been applied retroactively at least one time before in In re T.M.E., 169 S.W.3d 581 (Mo. App. 2005), and it agreed with this decision.  The appellate court determined that the trial court properly applied this statute to the father but because of the general interest and the importance of the question, it transferred the case to the Missouri Supreme Court for its decision on the retroactiveness of section 211.038.   It could be many months before the Supreme Court issues its decision.

Source:  In the Interest of A.S.W., ED88382, (Mo. App. E.D. 03/06/2007)

Case Review - Termination of Parental Rights

Is it right to terminate a mother's right to her child when she is not the cause of his behavioral problems?  This was the issue in In the Interest of B.T.  B.T. had severe behavioral problems which included head-butting, growling and jumping out of moving cars.  He was placed in foster or residential care since February 2002.  When he was released from a behavioral care facility his mother refused to take custody of him because she believed she could not take care of him.  He was then placed into a residential care facility.  Mom entered into a service plan whereby she was to visit B.T., provide financial support for him, and participate in parenting classes and therapy.  Additional services were ordered in June 2003, October 2003, February 2004, October 2004 and January 2005.  She was still not able to care for B.T. after all the services had been provided.  The juvenile court sought to terminate her parental rights in April 2005.  From May 2005 to June 2006 the mother had not seen B.T., communicated with him, or provided financial support for him.  The court made findings that included that although the mother was not responsible for B.T.'s behavior, she must be able to care for him.  The court terminated the mother's parental rights and she appealed on the grounds that there were not clear, cogent and convincing evidence to support the termination.

The appellate court found that the trial court was correct in terminating the mother's parental rights under section 211.447.  It specifically found that the mother had abandoned B.T. by not visiting with him, communicating  with him, or providing financial support for him for the period of May 2005 to June 2006.  She also neglected him by refusing his custody when he was initially released from the  behavioral facility, by visiting infrequently and failure to communicate and provide for his support for over a year.  The appellate court also found that even though the mother had complied with the service plan and had exhausted all available social services, she was still unable to care for B.T. and she must be able to do that.  The mother had failed to rectify the situation regarding her care of B.T.  The termination of her parental rights was upheld.

Source:  In the Interest of B.T., ED88445, (Mo. App. E.D. 03/06/2007)