The Law Firm of Bucknam Black Davis PC

Guardian ad litem frustration

Vermont’s Guardian ad litem (“GAL”) system needs review and revision.  GALs are appointed to represent the best interest of children. They are used in family court litigation between parents, and in cases where the state has either taken custody of a child in need of care and supervision, or a child who has committed a juvenile crime.  GALs are volunteers and have a limited role:  they can only give the court an opinion based on the evidence they heard in court.  While GALs are expected to  interview parents and children, and some even interview teachers and counselors, they are not allowed to use the information gathered outside of court to provide the court with an opinion as to what is in the best interest of the child. Thus the system is dysfunctional: GALs are expected to gather information that they cannot use in court.   The worst part of the system in my opinion is the fact that GALs are volunteers.  Because they are volunteers,  there are few GALs to choose from and GALs are inadequately trained.  There are many dedicated and effective GALs, but too many GALs bring prejudices to their job that they refuse to set aside.  The major prejudice I have observed  in cases involving two parents is against men. I have seen the following happen too many times over the years I have practiced: A newly appointed GAL calls the mother and the mother’s atorney and gets their side of the story. The GAL does not talk to either the father or the father’s attorney prior to the hearing.  At the courthouse, the GAL may sit in the witness room with the mother and her attorney, and may not bother to sit down with father to find out his position.  None of this, of course, is lost on the father.  The result: the GAL has made up his or her mind before the hearing starts, and —surprise!–does not change his or her mind after hearing the evidence.  GALs who are this prejudiced are not harmless.  Parties who are treated unfairly by GALs conclude that our court system is biased, and lose faith that the legal system will treat them fairly.  Those parties often become bitter, causing unecessary rifts between parents, and even between parents and children.  The party who is treated unfairly may be less inclined to follow court orders because of loss of respect for the court system.

Vermont judges are professionals and treat litigants fairly and courteously.  It is rare for a client to complain that a judge appears biased.  The same cannot be said for GALs.   And because GALs are considered by parties to be representative of the court system,  they can do enormous damage to public perception of our legal system’s integrity.

What is the solution?  There should be a review of the GAL system to determine ts goals and effectiveness.  For example, other states, like New Hampshire, use professional, paid GALs who take a much more active role in determining parenting issues.  I am not sure whether Vermont should adopt such a system, but I believe that GALs should be adequately compensated to attract more GALs,  and adequately trained so that they understand their role as an impartial advocate for the children.

OPINION: Vermont Court reform required for Vermont’s neediest children

>If a child is abused by his parents, there are two legal avenues to protect the child. One, outlined in Chapter 53 of Title 33 of Vermont Statutes Annotated, provides for the state to take custody and guardianship of the child, and provides a mechanism for reunification or termination of parental rights in an orderly, speedy and understandable process.
The other legal process occurs when a family member or family friend, rather than the state, seeks to obtain custody and guardianship. That process is slow, confusing and expensive. Families who seek to protect children from abuse without state intervention are penalized by a Byzantine system that keeps them in court for years.

The first process, outlined in Chapter 53 of Title 33 provides that if a child is abused, the State of Vermont may petition the court for an emergency order. If the court determines that the child is in need of care, and cannot remain at home, it will issue an emergency order awarding temporary custody to the state. Next, the statutes require a hearing within 72 hours and appointment of attorneys for the children and parents. Further procedural safeguards include a requirement for the state to provide a temporary care plan, and the court to hold a merits hearing within 60 days, in which the state must prove that the child is in need of care and supervision by the state. If the child remains in state custody, then the statutes require that the state prepare a plan within 28 days outlining steps families must take for reunification. The court must hold a hearing on the plan and approve it. Within 60 days, the court must review the progress made in the plan for reunification.

If parents are not making reasonable efforts to achieve the goal of reunification, the goal will change to termination of parental rights or other permanent legal status for the child. Here the statutes require a court to adopt a plan for achieving the permanency goal, and determine timelines. A permanency hearing to determine the progress towards those goals must be held no less often than every 12 months.

The goal of these statutes is to first give parents the opportunity to obtain custody of their children under a plan for reunification, and if parents fail, to provide a reasonably fast termination procedure so that children are not held in limbo for years.

The second situation, where a family or friend attempts to protect an abused child through a court process, is undoubtedly preferable to the state taking custody of a child and placing him in stranger’s home. Yet the procedure is entirely different from that outlined in Chapter 53.

The party seeking protection for the child first must go to Probate Court—not Family Court– to obtain a guardianship over the child. The statutes regulating under what conditions the State may take custody of a child are lengthy and specific. The guardianship statute, in contrast, articulates no understandable standard for the court to determine whether a guardianship should be awarded when there is abuse. The statute provides that a guardianship may be awarded if a parent is “incompetent or unsuitable”. The statute provides no other guidance.

If the probate court awards guardianship, it is indefinite, unless and until the court decides that “the parent is then a proper person to have the care and custody of the child.” There is no procedure outlined for when the probate court must make that determination, and no statutory guidance as to when a parent becomes a “proper person”.

If a guardian wants to terminate an abusive parent’s rights, the guardian must again petition the probate court. While there are specific standards in the statutes in determining whether parental rights should be terminated, there is no procedure whatsoever for a plan for reunification, or a permanency plan monitored by the court as there is when the state has custody of abused children. Thus there is no roadmap for either the parent or the guardian to follow to move to either reunification or permanent termination. Finally, the statutory provisions for revoking guardianship and the provisions for terminating parental rights are not related and do not reference each other. Thus if there are competing motions to revoke guardianship and terminate parental rights, the court is provided no guidance as to what standards to use, or even which issue to try first.

The situation becomes worse if one of the parties appeals a probate court decision. The rules provide that an appeal of a guardianship decision or a decision to terminate parental rights goes to Superior Court, not Family Court. Moreover, the rule provides for a “trial de novo”, or a brand new hearing on the issues. A party can even ask for a jury trial under the rule—although it is not clear whether a court may grant the request.

The provision for a trial de novo is not clear. The rule for appeal to Superior Court requires a statement of questions to be filed by the appellant, and that the Probate Court must transmit “the paper and exhibits” in the probate matter to Superior Court. Thus it is unclear as to whether the Superior Court can take into account the proceedings in Probate Court, or whether it must only consider the evidence in a hearing before Superior Court.

Finally, unlike the procedure in Family Court for dealing with abused children who are in state custody, there is no provision for appointment of attorneys for the parties. Thus family members who want to protect abused children must incur the expense of their own attorneys.

Families who want to protect children from abusive parents without state involvement are penalized by a court procedure which makes little sense and provides virtually no guidance to the court or the parties. Moreover, the procedure provides for jurisdiction of courts ill equipped to deal with issues concerning custody and termination of parental rights. Family courts routinely deal with issues involving parents and children, including custody, termination of parental rights, and parent child contact. To place the burden of such momentous decisions on courts that do not routinely deal with such issues is unfair to the courts and the parties.

This procedure should be reformed to mirror the procedure outlined in Chapter 53 of Title 33. While in many cases, the state intervenes in abuse cases, there should be a provision for the court to make decisions about protecting children without requiring state involvement when there are competent and caring relatives or friends who seek court assistance. The same child protection statutes should apply to all parties, whether it is the state or private individuals attempting to protect children.

Get Adobe Flash player