Is an attorney ad litem a guardian ad litem?

This oral argument arises out of a termination of parental rights case in which the trial court appointed an attorney to “represent the best interests of the child.” The Guardian ad Litem Program had announced that it had a conflict and could not represent the child because it was already appointed to the child’s mother, who was a minor in foster care. The mother’s rights were terminated and on appeal she argued only one point: that the law requires the appointment of a guardian ad litem, not an attorney ad litem, for the child.

The question raised by the judges is simple: Is there even a difference between an attorney ad litem and a guardian ad litem? The Department doesn’t see much difference (or that GALs are even that important–“just one of the manifest best interest factors”), and points to the statute that says that either a guardian ad litem or a “legal representative” is allowed. Mr. Joyce, for the mother, however, points out one main difference: AALs are legal advocates, whereas GALs are witnesses (who happen to have party status in Florida).  GALs testify and are subject to cross examination. AALs question witnesses and are bound by the Rules of Professional Conduct. The statute and rules all require a guardian ad litem, not an attorney.

The term “attorney ad litem” is indeed confusing, because “ad litem” means “for the case” and not “for the child.” The term “ad litem’ is added to the word “guardian” to distinguish this type of guardian from a probate or natural guardian who can make decisions in all matters in the ward’s life. When children are appointed attorneys, the suffix “ad litem” seems to redundantly follow. I say redundantly because all attorneys who accept appointments limited to a single case are by definition attorneys “ad litem,” irrespective of the age or capacity of their client.

The role confusion between AALs and GALs has come up on this blog before, for example in the case of the GAL appointed in a family case that was permitted to question witnesses as though she were a lawyer (probably in violation of the law against unlicensed practice of law). And a lot of ink in other fora has been spilled over whether an attorney can be a best interest advocate consistent with the rules of professional conduct, which require direction from an actual client. I’ve always found that particular argument tiring and distracting–we need all hands on deck in the fight against child maltreatment. My preferred debate is over who we should be prosecuting for creating the conditions of abuse and neglect.

What strikes the Third DCA panel as most curious, though, is why the Guardian ad Litem Program is conflicting off of a case where it also represents a minor parent. “This is the first we’ve heard of this problem,” says Judge Lagoa.  The Guardian Program is not there to explain, but their Standards of Operation are clear: It is the Program’s policy to leave it to local offices to decide how to handle the situation. According to the Standards:

4.D. Representation of Related Children. The appointment of the Program to advance the best interest of multiple related children or parents presents no conflict of interest necessitating discharge, in accordance with Rule 4-1, Rules Regulating the Florida Bar.

The GAL must always be open and honest about our past role with children involved in the
case. In addition, every Circuit must resolve how we make recommendations to the court in
the following situations:

1. When the Program simultaneously represents a minor parent and that minor’s
child(ren);
2. When the Program represents a minor child and previously represented the minor
child’s parent and the information from the representation of the parent could now be
used to the disadvantage of the parent;
3. When the Program represents two or more children where the best interests of one
child are incompatible with or in any way contrary to the best interests of another.

 
Possible resolutions may include: 1) use of pro-bono attorneys or 2) assigning a GAL from a
different circuit, county, or unit. The Circuit may consider additional options based on local
circumstances and resources. The Program strives to assign an active GAL to all children the
Program is court-ordered to represent, within available resources.

 

The local program, here, used a pro-bono attorney, consistent with its policies.  What underlies the question about how the Program could have a conflict is another question about how it functions on cases. For most of the oral argument, the  Court’s assumption seem to be that the Program’s primary role is to recruit and train volunteer guardians ad litem. An organization with that description would not need a conflict of interest policy if the guardians themselves are autonomous. What is missing from that picture is that the Guardian ad Litem Program recruits and trains volunteers to work the cases to which the Program itself is appointed. The Program takes substantive positions on cases and manages those positions sometimes in conflict with the volunteers who appear before the courts. The Program describes how its team model works in its Standards:

In nearly all cases, the GAL will have first-hand knowledge of the facts of the case. When a conflict arises as to an issue of fact, the team shall defer to the GAL. When a conflict arises as to an issue of law, the team shall defer to the CBI Attorney.

If there is a circumstance when a conflict cannot be resolved within the team, the Circuit Director and Supervising Attorney should be consulted and should work together to resolve the conflict; if necessary, they should consult with the Regional Director and the Chief Legal Counsel. In the rare event that an agreement cannot be reached, the conflict shall be referred to the Director of Operations with legal consultation from the State Director of Legal Services.

There may be times when a GAL strongly recommends an action that is not consistent with state law; in those cases, the report to the court may be written to recognize the GAL recommendation, but point out that under current law, this action would not be permissible.

If the CAC and/or the CBI Attorney believe that it is in the child’s best interest to remove the assigned GAL from a case, the case must be staffed with the Circuit Director and the Supervising Attorney prior to any action being taken. Information regarding the GAL’s advocacy and the reasons for the proposed removal of the GAL from the case must be documented. No GAL shall ever be removed from a case without being informed of their team’s concerns by the Circuit Director and having the opportunity to respond. The decision to remove a GAL from an assigned child is up to the Circuit Director and the decision may not be delegated.

 

Much ink has also been spilled over whether this is good (the institutional knowledge of the Program plus the enthusiasm of the volunteers results in better best interests recommendations), bad (the politics of a statewide governmental organization with insecure funding negatively affect the positions taken on behalf of individual children), or just baffling (it’s unheard of for a statewide agency to take the place of a party in interest–the child–to a matter).  I’ve long taken the position that it’s all three at different times, but mostly good for the kids the Program works with. The team model was one of the things that drew me to work at the Program when I first started practicing.

In this particular case, the Third DCA affirmed the TPR, holding that while it was definitely error not to appoint a guardian ad litem, the attorney ad litem fulfilled almost all of the same functions and nobody objected during the trial. The philosophical debates over whether an AAL can really be a GAL and whether a GAL can have a conflict were rightfully left for another day.

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