Third DCA Silent on GAL Replacement

Comments

5 responses to “Third DCA Silent on GAL Replacement”

1. 

   Patrick

   March 14, 2012

   Well put Robert (four easy steps). Been crazy busy and havent had time to check in on the blog in a minute, but I read the opinion today and thought you’d have something on it. Have you actually seen a replaced GAL be called by the defense?

   Reply
   1. 

      Robert

      March 14, 2012

      I’ve heard of it happening. Any defense attorney worth her salt would do it.

      Reply
2. 

   Robin Rosenberg

   March 14, 2012

   In this case, everyone knew what the Program did in replacing the volunteer with a staff member. But what about those cases where that fact is not known by the court and other parties? Shouldn’t the Program have a duty to advise the court if there is a difference of opinion between the volunteer (or staff) GAL and the Program?

   Reply
3. 

   Robert

   March 15, 2012

   At some level I agree with you that courts need to hear other opinions–especially when that opinion is coming from closer to the ground, so to speak. But I don’t think that would be consistent with the way the legislature has set up the GAL Program. The GAL Program is an organizational party, and as such they’re entitled to speak with one voice through their own protocols–not have every member of the team vote in public. If they are required to disclose minority opinions, that transforms them from a unitary advocate to a think-tank. That’s certainly a possible model for the Program, but I don’t think it’s the one the legislature intended. (It also has interesting legal problems, such as which position would be preserved for appeal?)

   I think the system, as it is designed, can work. If the GAL assigned has a conflict with another member of the team, the conflict resolution protocol should be followed. A staffing is held with the lawyer, the GAL, and the supervisor–consensus is attempted. If there is no consensus, then it’s staffed higher up the chain. Eventually, a single position is reached, even if that position has to come solely from the executive director. There’s nothing in the protocol that says the dissenting GAL has to deliver that position to the court. In fact, I believe it would be perjury for a GAL to swear to a position that he or she does not actually hold. The attorneys involved should be monitoring for that very closely, making sure that there has been no undue coercion. I’ve heard the stories of GALs feeling pressured–if there is credible evidence that a lawyer was involved in strong-arming a GAL to testify against his or her true opinions, then the Bar should sort that out.

   Your concern about the transparency of this process is well-founded. But, if the lawyers are doing their jobs, then a dissenting GAL doesn’t testify and a supervisor or the executive director stands in their place. An alert defense attorney will note the shift and will set depos immediately. An alert judge will subpoena the dissenting GAL herself. I think this preserves all the interests involved: the GAL Program maintains a unitary position on an issue, the Court has the opportunity to hear the dissent, and the other parties have some awareness of the goings-on.

   I’ll anticipate one response: the evil of coercion happens in less extreme forms that go unstated and therefore unaddressed by the protocol. For example, a volunteer GAL may go along with the staff because they feel out-smarted, out-voted, or because they’re afraid of being pulled from a case. I don’t know that you can ever eliminate human compulsion from a group decision-making process, short of going back to a purely individual GAL model which had no group at all.

   Reply
4. 

   Robin Rosenberg

   March 15, 2012

   Sorry, but as Click and Clack would say, booooooogus! The law defines GAL broadly to include, but is not limited to the GALP. I don’t see anything that makes me think the Legislature intended to set up a system of institutional decision making. I’d bet you dollars to donuts that if you surveyed the Legislature today – as well as the folks who created the statewide office, you’d see that they think that a GAL is a volunteer who spends time with the child and offers their perspective on the child’s best interest to the court – and does their job with the support of the GAL program.

   I think there is value to the group decision making process, if appropriately implemented. The volunteer with the greatest knowledge of the facts and their common sense and intuition should be guided and informed by professional staff who should have superior knowledge of child welfare practice and social science research. In most cases, that should result in the volunteer being able to sincerely advocate for the consensus position- unless, of course,the Program’s position is based on factors not specifically related to the child’s best interest – like we don’t have the funds to litigate the issue or we don’t want to oppose DCF, or get crosswise with the judge.

   If the system, as you described it, was operational and not aspirational, and if all the parties and judges knew how things functioned, and acted accordingly, then specific disclosure of the difference of opinion wouldn’t be necessary. But, as far as I can tell, we aren’t there yet.

   Reply