Monday, April 30, 2012

GALs and the Question of Oversight and Supervision

GAL oversight and GAL supervision in Maine pose some tough issues for all of us to consider, the principle one being, What do we mean by GAL oversight?

Generally, the word, oversight has three definitions: (a) watchful and responsible care, (b) regulatory supervision, (c) inadvertent omission or error. In the interests of simplicity, we'd opt for (b) regulatory supervision. And we'd say that one model for this is the example of the various licensing boards in Maine.

The Maine licensing boards, which cover the base GAL professions, social work, psychology, law and medicine, seem to be a fairly straight forward operation for those professionals, who are not GALs. They issue licenses and renewals to those various professionals who meeting statutory standards, and they handle complaints from the public. Their complaint process is fairly uncomplicated. The staff are definitely user friendly and helpful. We have wondered before why they aren't allowed to handle GALs from the various professions over which they have oversight?  We have largely covered this topic in an earlier blog, but we continue to believe that Maine's licensing boards, if allowed, would be the best place for GAL oversight with some tweaking of current law.  

At the present, the best they can do is to review a complaint about one of their licensees, who is a GAL, and if there appears to be a serious professional malfunction, dismiss the case, but doing so without prejudice.  This means that such a complaint can be re-examined, using the same complaint data, by the licensing board, after it has jumped through all of the Judicial Branch hoops.  

GAL supervision is a  more complex issue.  Conceptually, one is looking at the idea of supervising "an officer of the court" who is appointed - not employed-  by the court, whose fees come from consumers who are adversaries of each other, and who may themselves in the end be adversaries of the GAL.  Then, there is the child who is supposed to be the GAL's primary client and, finally, there is the judge.  Who exactly is the GAL working for?  Does anyone know for sure?   Would a GAL supervisor need to evaluate the GAL's handling of each of these separate  relationships?  What would be the chain of command for a supervisor? 

There are a number of serious questions about this complex, often conflicted set of relationships that seem to go unanswered.  For example, who owns the highly sensitive, private  information about the family, and who can give permission for a GAL to share it with a GAL supervisor who is unknown to the parties? The court, the GAL, the clients, the child?  What happens to any idea of confidentiality in all of this?  What is the liability of a potential GAL supervisor, if there are complaints of malpractice by a GAL?  Is a putative GAL supervisor responsible for reporting malpractice to the authorities?   Are GAL supervisors in a position similar to Catholic bishops in cases of clergy abuse?  Is there is legal immunity claimed by a GAL supervisor, if so, where does it come from and what is its extent?  Does malpractice insurance cover GAL supervisors?  Can a supervisor who is also, say, a lawyer,  an advocate. a lobbyist and a promoter of the GAL industry, also provide objective supervision on the work quality of a colleague?  Isn't there an inherent conflict in these roles, and isn't conflict likely to happen?   We think that there is a lot of role conflict, and we seriously doubt that any putative GAL supervisor will rat on a defective professional buddy.  So, in the light of these issues, what exactly does supervision of a GAL mean?

There is another hazard for those GALs who are both lawyers and GALs, who are in a GAL supervision situation, be it individual supervision or group supervision.  What are the guarantees that a practicing lawyer will not gain access to highly volatile information that may give them an advantage in another, separate adversarial situation involving one of the parties under other circumstances?  From almost every perspective the problems of GAL supervision are fraught with difficulties. 

Any supervision plan for GALs needs to start with the question: "Supervision about what?"  It is our opinion that any form of supervision must start with the statutory job description that defines a GAL's functions.  Is the GAL performing these functions?  Do they need improvement?  Are there problems of malpractice?  What is the supervisor to do in each situation?    Designing a supervisory process has to back into design from mandatory GAL functions.  Any design for supervision will need encoding for standardization and periodic review.  It is of critical importance to remember that this is supervision in a legal system; not for  a mental health clinic, and the requirements of a  legal context must be a central part of supervisory design.  We would strongly urge the Judicial Branch to seek  out of state consultation on this matter.  Otherwise incest is apt to be rampant.

As a relatively small state, Maine tends to be a very "cozy" state, and  this coziness is prone to make for blind spots in designing oversight and supervisory systems.  The use of outside experts and the addition of input from local consumers is one way of designing a system that is less geared to the special interests of GALs - and more fair and friendly to others.

Sunday, April 29, 2012

GALs and the Safety of Our Children

In the hands of a GAL are our Children Really Safe?

It strikes us that if one uses a "in the child's best interest" standard, that an important baseline consideration is: "Is the child safe?"  Clearly there are additional issues like the child's well being, its opportunities for normal, physical and psychological growth and development, its social and moral development, but central to society's interest is safety.

 We have been appalled by reports of GAL recommendations that propose assigning a child's custody to a parent with an extensive history of alcoholism, prescription  drug abuse and felonious legal issues - especially when there are other, safer, better choices.  In these cases there has been no assessment of child's safety or of the older idea of "parental fitness".  The new, hip view is that at all costs the GAL should avoid "social or cultural bias".  In bending over backwards to meet the avoidance of social or cultural bias, the "broad-minded" GAL must give due consideration to high risk parents, who might have been considered "unfit" in previous years.  Has the parent showed up drunk for an interview with the GAL?  Have they dilated pupils or do they stagger?  If not observed by the GAL, and if they say they are clean, they are innocent until proven guilty.  It is simple, blind denial, and it places "the best interest of the child" at serious risk.

We feel that the Judicial Branch should demand primary, professional  information to back up these recommendations.  What do the physicians, psychologists, drug counselors, parole officers have to say?  What about family members (on both sides)?  What about independent psychological testing for fitness to parent?  What about an in depth assessment of the biases in favor of not showing bias to cultural or social issues?

There is another concern that comes out of "the child's best interest" standard, mediation.  Isn't mediation a conflict of interest for a GAL?  If a GAL stands for "the child's best interest", how can that GAL broker a deal with the parents?  Doesn't best interest have to be separate from: "I want; you want?"  Carving up the child for the parents is not necessarily in "the child's best interest!"  Parents are frequently told by GALs that whatever they agree to will be recommended to the court.  Mediation is one of the "mission expansions" that has gradually been added to the GAL's statutory role.  It generates huge billable hours.  Can a GAL, as an arm of the court, be an unbiased mediator?  In our opinion the legal power behind a GAL precludes a free, open exchange necessary for true mediation.  The GAL is armed by his/her appointment in these transactions, and wearing a gun precludes free discussion.

As old teachers say to children, "We can do this the easy way or the hard way, the choice is up to you."  But GAL clients aren't children!   

We ask ... is this 'modus operandi' "in the best interest of the child" or in that of the GAL? 

The choice is up to you.

Saturday, April 28, 2012

Where is the GPS for Maine GALs?

Maine GALs and Judiciary are driving blind!

It is our impression and that of others in the media that the Judicial Branch is driving blind when it comes to modern managerial tools of GAL program oversight. There appear to be no regular statistics coming out of any part of the judicial system that would allow the Judicial Branch to know what is going on at all levels of the system with regard to GALs. There is no data indicating how many of the 328 GALS in Maine are working on cases at any one time, which courts have appointed them, how long they have been on a case, whether there are problems, complaints or complications. Does York have more GALs on the job than, say, Bangor, or Wiscasset? What are the comparative profiles of each district court with regard to GAL usage and GAL complaints or problems?  Are particular GALs in the system consistently generating more problems? 

Either no one knows, or they're not telling.  We strongly suspect that they don't know.  Management information is a key part of oversight and management of a GAL program.  It leaves the Judicial Branch without the vitally important contemporary information tools used by every business in America, by most governments and by academia. 

Guardian ad litem activities ought to be recorded monthly by GAL professionals, in systematic ways, recording of their activities required by statute (a to do list) and checking off point by point mandated requirements to name a few. We are told there is  "No money for it" as the reason in Maine for not having management information systems, or "possible violation of confidentiality", or "intrusion into the need to protect judge's impartiality".  All of these are issues that can be addressed and dealt with by planner programmers.  We have to ask: How do better rated  state judicial systems handle this data for program management issues?  Can we in Maine borrow ideas (or whole systems) from others?  Why are we not actively seeking outside consultation on information systems?  Maine, as a small, poor state sometimes seems to fall back on the old Ogden Nash observation, "incest is best", and turn to familiar members of the family for technical help that lacks an objective, arm's length viewpoint.  To improve our national report card rating of "F", we don't need participants responsible for the "F" reforming a GAL data program.

We need to escape from a 19th century anecdotal approach in managing 328 GALs in Maine: "It's not that bad..."  If there are problems, just wait till they explode, and then deal with them 'ad hoc'.   The current handling of Maine's GAL program  is akin to driving a car at full speed with windows blackened and no external visibility!  More families and children are going to get hurt.  An informed public is going to protest these inadequacies with increasing strength and frequency. 

At the very least, the Judicial Branch should impose a moratorium on creating new GALs until they have the modern information tools to manage them.  To say "It's not that bad" is an unacceptable standard when children and families are involved.

Guardian ad litems and Informed Consent

One of the issues that is very frequently expressed when you talk with those who have been exposed to a Guardian ad litem in a child custody situation is: "I didn't know what to expect." Or ... "At first I thought it was me, that I was missing something or didn't understand." Another common statement is: "I thought it was my fault." Then ..."It gradually dawned on me that there was something wrong on the GAL's end." All of these comments speak to confusion, surprise, lack of understanding and, finally, recognition and anger on the part of clients that can be common ingredients in a troubled Guardian ad litem experience.

Yes, there is information on a state web site, which spells out what a Guardian ad litem is supposed to do. It is an empty standard without any enforcement, and it is frequently discovered by the client after the process has started, after a commitment has been made, and open-ended  contracts signed.  And ... you find yourself trapped!. Lawyers frequently fail to explain what the boundaries of a GAL are and what they do.  GAL's themselves mostly just jump in and start working and may just give cursory instruction as to what they do. The client is left with huge confusion, imagining that this lack of orientation is simply the standard- if primitive- way of doing business with the judicial system. The sad thing is they are absolutely right.  

To avoid the client's sense of confusion and entrapment, to avoid the shock of an unpleasant surprise, the Judicial Branch should mandate a policy of informed consent as a foundation for a client's relationship with a GAL.

Informed consent must meet certain minimal standards. "It is based on a clear appreciation and understanding of the facts, implications and future consequences of an action." as defined in Wikipedia.  In the client/GAL relationship, the client needs a practical road map of how the GAL's actions will proceed.  Who is the GAL representing: the clients, the child, a lawyer, or the judge?  What are the boundaries of GAL confidentiality in general, and does it apply to so-called group supervision with other GAL's?  Are there any confidentiality boundaries that can't be broken?    Where do a GAL's  'ex parte' communications with the judge, both those announced and secret ones fit?  How about GAL fees?  How often will bills be rendered?  Will chargeable GAL activities be identified or itemized clearly or not?   Is their a "cap" on a GAL's fees?  How can one appeal a bill?  There also needs to be the revelation by a GAL: "I operate without any oversight."

These are only a small part of the topical issues that any GAL's client might need to understand in order to give "informed consent" for a GAL to proceed.  Most important to clients as the case proceeds is: How do I get rid of this GAL?  The pragmatic answer is: "You probably can't", coupled with "how much money do you have to initiate a motion to remove a GAL?"  What will it cost to do an appeal?  How many cases make it to appeal and how successful are appeals?    

For a court to appoint a GAL without any "informed consent", in our opinion, can be seen as an act of unrestrained judicial force.  It thrusts an unregulated GAL, with no oversight, into the center of families, already experiencing the interpersonal pain of a divorce.  At present, there is no quality assurance for this GAL.  It is a totalitarian act and needs the most thoughtful, careful (and transparent) justification for such a use of power in each case, if there is a desire to avoid abuse - or the appearance of abuse.

We are in touch with growing numbers of GAL clients who are bearing witness to the serious personal devastation caused by no anticipatory guidance for the GAL process. No informed consent!

Wednesday, April 25, 2012

Conflicts between branches of government over GAL oversight

We believe the one big, overriding issue for GAL reform is the total lack of oversight of their work. This issue has been identified by several other important groups before - but in thinking more deeply about this issue - it is more than just a lack of oversight in the form of supervision. It is that most (if not all) GALs are licensed professionals - lawyers, social workers, and such. They are in professions that have legally mandated oversight by their various Maine boards of licensing, yet these professional boards seem to be disabled by current laws governing GALs  from taking any normal corrective action on complaints from the public.

The code of ethics and standards that apply to GALs under their licensed professions - somehow don't apply when they are in the role of GAL. As an example, a social worker working as a GAL may use his/her Social worker status on his/her professional letterhead for all purposes. The social work letterhead markets the GAL as a social worker to the public, yet if he/she violates code of social work ethics under that umbrella - while serving as a GAL - he/she has immunity, by the mere fact of being a GAL. The professional board is prevented from acting on its oversight function. The best it can do in an egregious situation is dismiss the case "without prejudice".

It seems to us that the very experienced Maine licensing board should have a major role in GAL oversight - since they are already overseeing and licensing these professionals in their base professional capacity.  They should not be disabled from so doing by law.

The licensing board and the Judicial Branch might ask themselves - why shouldn't the same ethical and other professional standards apply to both professional situations simultaneously? Any additional regulatory requirements arising out of the GAL role should be relatively easily added to the licensing boards mandate. The lines of professional accountability are currently very unclear for the consumer, who may incorrectly assume that a GAL who is also a Social Worker or other professional (lawyer, doctor) will be held to the professional standards of their base profession. And they are not. When functioning as a GAL, they are free from any accounting to their professional boards.

The current law governing GALs allows someone in serious violation of the standards and ethics of their professional licensing board to continue to function as a GAL, protected from any corrective action by their board just by the fact of being a GAL. The law currently disables the professional standards of the licensing boards. An unprincipled GAL is professionally bullet proof.

The judicial Branch needs to correct this appalling structural malfunction "In the best interest of children"!

5 Roadblocks to GAL removal in Maine

In any custody case there is the possibility that the GALs work and ethics come into question. You are at the point of no return and start to file a complaint. The process is uncomplicated as described on the State of Maine’s Judiciary web site. Asking people associated with the judiciary and you will be directed to the Guardian ad litem complaint process. Reading it is straightforward and seems rather simple in its approach.

Looks though can be deceiving.

If you decide to file a complaint against a GAL be prepared for a process that is anything but clear and open.The reality of GAL removal is that it is nearly impossible (only two GALs have been removed in the last 5 years) and will cost you thousands of dollars. Let alone the countless hours invested.

Here are some of the road blocks to removing a GAL:
  1. You are an outsider and have no connection to the working relationship that those in Maine's court system have with each other.
  2. The Judge has a working relationship with your GAL. In some cases the Judge has been working for years with this person. 
  3. The Judge is biased towards your GAL because of this working relationship.
  4. Because of this bias the Judge is not – repeat not – a neutral party in any dispute you may have - right or wrong - with your GAL.
  5. Any complaint filed against a GAL is a reflection on the Judge and his/ her management techniques.

Because of this working relationship it becomes very hard for a valid complaint to make any headway in the legal process. The judge who is supposed to be a neutral figure in your dispute in actuality is not. The judge may be biased because of the working relationship he/ she has with the GAL associated to your case. Breaking this relationship is near to impossible and does not allow for corrective action against a GAL that may be doing something wrong.

The biggest roadblock to GAL removal is Maine's Judicial system. Oversight and management has to be removed from the judicial branch. 

Sunday, April 22, 2012

GAL confidentiality is nothing more than a mirage

Confidentiality is one of today's hottest, "hot button" issues.  In medical, financial  and credit systems, to name just a few, there are stringent efforts made- required by legislation- to protect personal data. This is a key part of preventing identity theft and protecting privacy, and it is rightly a big concern for consumers of any service. Who has the "right to know" my private, personal information; who may access it?. There are elaborate releases of information required for most systems. In the case of the highly sensitive information collected by GAL, we feel no sense of confidence that privacy is guaranteed. 

As we read the statutes, GAL case-confidentiality is "mostly" confidential. The statute starts out bravely with a call for confidentiality, but it quickly morphs into sanctifying the GAL's personal opinion about who needs to know. Below are two excerpts from the Guardian ad litem standards in Maine. You be the judge about these twisted statutes.

6.2 Confidentiality. A Guardian ad litem shall observe all statutes, rules and regulations concerning confidentiality. A Guardian ad litem shall not disclose information or participate in the disclosure of information relating to an appointed case to any person who is not a party to the case, except as necessary to perform the Guardian ad litem's duties, including those referenced in Standards.

And.... the unchallengeable claim of "best interest of the child"

3.2, 5.2 and 5.3, or as may be specifically provided by law. Communications made to a Guardian, including those made to a Guardian by a child, are not privileged and may or may not be disclosed to the parties, the Court or to professionals providing services to the child or the family based on the Guardian's evaluation of the best interest of the child. A Guardian's notes and work papers are privileged and shall not be disclosed to any person.

As we read it GAL the confidentiality statute appears loaded with circular reasoning and quite dependent on a GAL's personal opinion. It includes the paradox that the most likely victim of "confidentiality" might be one or both parties; especially, if the GAL uses that old, frequently defensive, self-serving mantra, "not in the child's best interest"!

Another questionable activity that may well infringe on any pretense of GAL confidentiality, is the free sharing of GAL client cases in monthly, Maine Guardian ad Litem Institute group  supervision meetings. This along with the use of the Institutes members and leaders for consultation about "difficult cases".  This study group sharing is unknown to the parties and done without permission from them to reveal details of their case.  Many GAL's are attorneys, if they participate in these case study groups, they might coincidentally be gaining knowledge about a case that might give them an advantage in court.  Maine is a small state, stories are distinctive, even if names are altered in discussions, identities may be hard to disguise. 

The concept of any form of technical case "supervision" by a trade organization, like the Maine Guardian ad Litem Institute, which in another context advocates for and defends its GAL members in a number of different political and legal situations, strikes us as fraught with conflicts of concept, design and interests. This to say nothing of shattering any recognized standard concepts of confidentiality! The normal arm's length attitude required to offer objective technical case supervision is lacking in a trade organization, which appropriately aims at defending and protecting its members. 

One cannot but wonder who created these wide open confidentiality statutes for GAL's? They clearly give GAL's a handful of trump cards, and may effectively turn "confidentiality" into whatever a GAL wants it to be. We feel that consumers have no privacy protection. GAL reform needs to bring the off-beat standards of GAL "confidentiality" into line with those in the rest of the world.

On matters of GAL confidentiality, as on many other issues, the Judicial Branch has been badly missing a consumer perspective on the issues.

Tuesday, April 17, 2012

The Money pit that is Guardian ad litem fees and invoices

Those who work in the Guardian ad litem industry, live in an extremely unusual, court-protected, economic world. Once they are appointed to a case by the court, they have a well-paid, court-protected cushy job. For the most part they charge between $100 to $200.00 per hour on average. They ask for a substantial cash advance of two or more thousand dollars before they start, which means that they are paid for services in advance.  They are very hard to remove from a case, once started.  Even if clients try to remove them, their continuance under client protest  is virtually insured in court  by the well-worn mantra, "in the child's best interest".  While many do detailed monthly invoices; many do not.  Nor are they under any obligation to itemize the activities for which they charge, if it is "not in the child's best interest".  Billing clients by GALs  is strictly a matter of do your own thing. 

It is a consumer protection nightmare to say the least.  There is no consumer protection.  The only thing protecting a consumer is the individual integrity of the GAL on the case.  If you have a unprincipled  GAL, you are just out of luck.  However, GALs themselves are well-protected by the court.  There is no ceiling on the limits of their bill, and they can run up charges for unidentified services that can top 25% of the parties annual income.  You dispute the bill, you ask for identification of charges, you want to know what created the exorbitant bill.  Can't tell; won't tell: "Not in the child's best interest"!  The court effectively protects the GAL's secrecy, and you will never know.  Unlike any other service in this country, you can be ordered to pay in excess of 25% of your annual income, for unidentified charges.  Could a doctor, a lawyer or a carpenter get away with this sort of billing? No because you would take them to court.

Financial problems and divorces frequently go hand in hand.  Divorces often come on the tail end of marriages with financial disasters.  Finances are disrupted, homes in jeopardy, debts are out of control, credit is broken or non-existent .  A GAL invoice for over 25% of one's annual income (or more), adds additional problems.  The cost of a divorce can easily run to $25,000.00 or more.  A GAL's fees can frequently exceed $12,000.00.  And ... these are conservative figures.  How do the parties finance these expenses?  Beg, borrow or steal.  Mortgage, if you can, or ask friends and family to help.  Frequently it falls to retired parents on a fixed income taking out a mortgage on their home.   There are no standards for GAL charges, for tailoring fees to incomes and debts of parties, for the outer limits of GAL charges (ceilings).  Those trapped as service recipients get hammered financially. 

Why do GAL charges go off the chart?  This is an important question that should be investigated by the Judicial Branch.  Our hunch is that excessively high GAL charges are the result of GAL "mission creep", services that go beyond the statutory regulations.  Getting to know the child, obtaining and reviewing records, talking with professionals and families, and other data collection activities, along with appearing in court are not apt to generate huge fees that go beyond retainers.  It is the social service type of activity, the counseling, the mediation attempts that are riddled with GAL role conflicts of interest and that gobble up hours and raise fees. The GAL is a business and the idea behind a business is to generate revenue. For a GAL can bill with no limits and have the court force the parties involved to pay.  Restricting GALs to  statutory activities only would be a start at cutting costs.

We strongly urge that the Judicial Branch enact ceilings on GAL charges, that they mandate a financial scale for charges that takes into account  the economics of the parties and their ability to survive and to be responsible to their children, that GALs do monthly invoices, that they identify charges and that their records be available to back up charges.  We also urge that GAL "mission creep" be curtailed and statutory activities be enforced. 

There is a desperate need for consumer protection in this industry!

Sunday, April 15, 2012

"Not in the child's best interest" is a misleading standard for GALs!

     Although we may get hammered by opposing opinions (from GALS), someone has to say it.  The current standard for child custody decisions, "in the child's best interest," is misleading and bogus!  It presumes that a Guardian ad litem using this standard has been anointed by God (and the appointing judge) and that the ensuing GAL determinations are made objectively and above the contentious fray of a marriage dissolving.  It assumes that one person, a GAL, can read all of the many tea leaves and read only the child's "best interest" through the tangle of tea leaves at the bottom of the tea cup.  It assumes that society will be better for such a ritual and such a formula.

     It is wrong.  And ... the whole notion of "in the child's best interest" as a court standard is deeply flawed conceptually, factually and legally.  It also provides an irrefutable, unarguable weapon for any miscreant GAL (or court) who chooses to abuse it.  It is the ultimate authoritarian refuge that can be used to preclude any further exploration or discussion of issues.  We are aware of reports of numerous abuses of "in the child's best interest".  There is the refusal to disclose GAL case records, the refusal to provide reasons behind complex, seemingly irrational GAL decisions, the refusal to respond to client challenges about regulatory violations, the refusal to identify charges on a GALs invoice of charges for service.  When challenged for enlightenment, the reply: Open discussion is "Not in the child's best interest!"  Sometimes this refusal to share data is reenforced with, "It might be dangerous."   End of discussion.  Over and out!

     This kind of authoritarian claim that a GAL, alone, using whatever resources, can determine what is "in the child's best interest", is misleading.  The child's wishes may be denied, and parental rights may be ignored.  Further there is no way of correcting the actions of a delinquent GAL making such highly subjective decisions, other than a very expensive, time consuming, slow moving appeal to a higher court.  Don't like it? Take your money and do an appeal to a higher court which created the unsupervised GALs in the first place.  No wonder there are so few appeals.  It is not about a lack of grievances, as some suggest.  It is about the lack of money and energy and time to pursue a complex corrective action.

     In the hands of a delinquent GAL, the idea of "in the child's best interest" can be a devastating weapon that brooks no defense.  It implicitly says: "Because I'm the Mommy, and I say so!"  "Mommy" has no place in common law and shouldn't be setting custody standards in court!

     Along with 'ex parte' discussions, "in the child's best interest" makes GALs virtually bullet proof legally!

Friday, April 13, 2012

Upcoming Hearing on Guardian ad Litem reform

Location     Maine Supreme Judicial Court 205 Newbury Street, Portland, ME  (207) 822-4146 ‎ ·

   Date     May 31, 2012
   Time     4:00 PM

The court is scheduling a meeting for Thursday, May 31 at 4 pm in the Cumberland County Courthouse to hear from interested parties and the public. A notice will go up on our web page before the end of April. We hope you will be able to attend and share your views. This is an important meeting regarding guardian ad litem reform and we need your support. More details and directions to follow.

Let's end all 'ex parte' parties between Judges and GALs

     In our view, this is our most important recommendation for Guardian ad litem reform.  There would be an enormous positive ripple for children, families and courts from this no cost change in statutory regulation prohibiting all 'ex parte' between judge and GAL.

     But ... exactly what is 'ex parte' communication between GALs and judges?  Though it is complained of from Maine to California, most people don't know about it, even those families who may wonder why they are getting blindsided by apparently out-of-nowhere judicial decisions, when they appear in court for a hearing.  'Ex parte' communications of any sort are exclusionary, private, out-of the courtroom communications between one of the parties and a judge, and they are almost universally frowned on by the traditions of common law.  The reasons for 'ex parte' communications being frowned on are because a private conversation with a judge is liable to impair judicial impartiality, the very cornerstone of judicial fairness.  It presents one viewpoint only, that of the GAL- in our consideration of this issue, and, as we know, family matters are complex and there are multiple viewpoints that need open consideration.

     More importantly, 'ex parte' communications between a GAL and judge can function as a hearing before the real courtroom hearing.  Maine statutory regulations permit GALs to do 'ex parte', with the proviso that the parties are informed after the fact about the topic of the discussion.  But ... there are exceptions to the requirement to inform the parties.  'Ex parte' may be done secretly, if the GAL claims that such secrecy would be "in the best interests of the child"!  This subjective formulaic claim of "best interest" is one that is wide open to corrupt practices and abuse.

     'De facto', secret 'ex parte' communications can transform the GAL into a paid, unaccountable, secret informer of the court.  It is reminiscent of the distasteful human rights violations of the Inquisition and the m.o. of secret informers during the French Revolution's reign or Terror.  It is anti democratic, it goes against common law traditions that respect fairness and openness in a trial.  Other states are addressing this issue, and their stances are worth considering.  It is an abhorrent practice that needs to end.

     But it will not end as long as one aspect of the GALs role is conceptualized as "the eyes and ears" of the judge!  Judges should not use GALs as private eyes!

Wednesday, April 11, 2012

Hearing on Guardian ad litem reform.

Hearing on Guardian ad litem reform.

Maine needs outside consultation for GAL reform

     In thinking about repairing a broken GAL system, we feel that one should start with a look at previous perceptions of the problem.  OPEGA's 2006 Report on Guardian ad litem Oversight is an excellent place to begin.  It is thoughtful, non-partisan and thorough.  It is very detailed and explicit.  In 112 pages it says that there is no oversight of GALs, and it details many complaints from the grass roots about the system.

     The 2008-9 Judicial Branch report on the same topic says much the same thing in speaking about the GAL oversight problem.  It was the work of a committee that had 7 GALs, several of whom were members of the Maine Guardian ad Litem Institute board.  It proposed an elaborate investigative process that gently investigated problems and gently helped to repair malfunctioning.  It cost $500,000 and was understandably refused by Maine's legislature.

     There was also the report in 2009 by First Star, a children's advocacy group, and by The Children's Advocacy Group of the University of San Diego School of Law.  These collaborating organizations gave Maine- and 6 other states- an "F" in its legal protection of children.  Finally, there is Maine's Chief Justice, Leigh Saufley, who spoke at a hearing of the Joint Committee of the Legislature on the Judiciary, declaring that Guardians ad litem had no oversight and promising to come up with a plan for the legislature's Judiciary Committee by October.

     That there is a GAL problem of unknown dimensions is undeniable.  What to do about it and who the architects of reform might be are of huge concern to those children and families affected by the system and any future reform plans.

     We would recommend that the Judicial Branch seek formal, outside consultation from relevant professionals in those states, which are recognized as leaders in the legal protection of children.  The use of outside experts allows for extrication and detachment from the always enmeshed politics of a small state like Maine.  It might also bring the best thinking available to the problem-solving of a complex systems problem: GALs, their roles and functions, their legal boundaries, their management and oversight, and the systems and data collection that would functionally promote these aims.

     At all cost, we need to avoid another planning effort like that of the judicial branch in 2009. One in which the planners included 7 "foxes" working on  the security plans for the "hen house".

Monday, April 9, 2012

Comment - from Diane Loranger in todays Portland Press Herald on GAL reform

In today's Portland Press Herald Diane Loranger comments on Guardian ad litem reform for the kids sake. In her comment she makes some very good points to counter Toby Hollander of the Maine Guardian ad Litem Institute (the trade organization of the Guardian ad litem program in Maine).

She commented on the "training" that GALs go through and the fact that there is no clearly defined method to file complaints to name a few points. To read what Diane has to say please follow this link. Her letter is the forth one down from the top.

Link - PPH letter to the editor.

What does "ex parte communication" mean and why is it harmful?

It's basic meaning is "by or for one party" or "by one side" and is typically one sided communication with the judge. It strikes at the fundamental fairness of our legal system and those involved (judges, lawyers and litigants) are forbidden to do it. Ex parte communication violates our rights in a lawsuit to due process covered by the fifth and fourteenth amendments. Due process includes the right to notice of the complaint or charge, the right to be notified and to be present at a hearing, and the right to confront and cross examine witnesses. Due process also allows a person an opportunity to present their own evidence and witnesses in support of their view of the events.

If the GAL was appointed by the court and works for the court then how can communication with the judge be ex parte?

It is unfair for the GAL to communicate with the  judge one on one. Judges should not conduct their own investigation of a case without the knowledge of the parties involved. In doing so this creates the appearance of impropriety and undermines the public's confidence of the judge and or judicial system. The judge can no longer act in a competent nor impartial manner. In other words when a judge and Guardian ad litem have ex parte communication the GAL is influencing the decision of the judge without cross-examination of her facts. It is in a sense a  secret, private trail that is being held before the actual open courtroom trial. When the parties in the custody dispute meet they looking to the judge for a fair, unbiased and just decision. One which the judge can not make if there has been prior, private, unchallenged communication that had been held between the GAL and judge. 

Back in 2008 the GAL trade organization, The Maine Guardian ad Litem Institute, actually advocated through their board members sitting on a judicial branch committee ex parte communication in family court cases. Thankfully this was not enacted into law. It would have damaged the common law basis of open due process with all facts shared by all parties in a court trail. It would have been harmful to everyone in the process. 

Sunday, April 8, 2012

Comment - GAL Oversight from Patricia Chapman

My daughter was involved with a GAL and she went against the children and their mother--she deemed that the children should stay with the abusive father--the father's parents had a lot of money and paid off all that they could and as a result he is continuing to abuse my daughter (10 years later ) and the children have had so many problems- the oldest was pregnant at 15 with a 28 year old guy  who he let stay in his home and allowed them to sleep together---the youngest is struggling and failing in school.  you don't have to tell me about the corrupt GAL system

A comment to the posting on the Village Soup:

Village Soup - GAL Oversight

Thursday, April 5, 2012

An inexpensive way to GAL reform

Part of the problem with Guardian ad litem reform has been the cost. In a 2008 report it was suggested that a $500,000 budget would settle most if not all of the issues on reform and oversight. Because of State budget restraints this was just not going to happen.

Fast forward to 2012 and a concerned group of citizens who are trying once again to push through reform of the Guardian ad litem system. Cost, like back in 2008 are still an issue. Throwing money at the problem may fix it - yet, there are low cost or even no cost solutions. For instance making ex parte (or off the record conversation - between a judge and GAL for instance) forbidden. This type of conversation is not neutral as the GAL is able to influence the Judge one way or another. Keeping all parties appraised of what is going on keeps drama to a minimum. Everyone is on the same page so to speak.

Another simple and easy way to assure a measure of oversight is to make all GAL records transparent and open. The emails we have received from people through out the state is that there is a high level of frustration in understanding what exactly the GAL is doing. When told that records are sealed in the best interest of the child it makes for a maddening situation. It eliminates any checks and balances and sets up a scenario for potential abuse by the GAL (whether intentional or not).

Will a program that costs the state $500,000 help provide oversight to the GAL program in the state of Maine. It certainly will. Then one begs to question whether or not Maine really needs a Cadillac program to solve the problem in these tough economic times. Or with a little creative thinking the state could get away with something less expensive. If the idea is to be able to get from point A to point B then a low cost solution can fit the bill. Change is coming.

The Buzz on Guardian Ad litems as seen in Village Soup

What is the buzz on Guardian ad litems all about? 

Read other articles about the concerns Maine Citizens have on Guardian ad litems. Reform and change is coming and it is coming because of the efforts of you.

What is the buzz on Guardian ad litems all about?

"I have been hearing a lot of buzz about guardian ad litems lately. I guess I didn't realize there was so many issues with them. Why hadn't I heard of this problem before?" a comment from a post made earlier today by Anonymous.

For most of us the term Guardian ad litem is one that most people will never have knowledge of. Guardian ad litem or GAL is a person who works within the court system and usually involved in custody cases. They are in a sense the eyes and ears for the Judge. Think of it this way, a Judge is only able to see a snapshot of the dispute. The GALs function provides the Judge a preview of sorts. Not the whole experience but hopefully enough that the Judge can get a sense of what is going on. There are rules and standards that the GAL operate under and management of the GAL during the investigation is in the hands of the judge that appointed him/ her.

GALs have been in the news lately because there is growing concern in the way they (GALs) are managed. Back in 2001 in the Final Report of the Committee to Review the Child Protective System - it was noted that there is no actual supervision or oversight of GALs other than the presiding Judge or through the complaint process. Back then there were 139 GALs registered. Today there are over 300 GALs registered and still no oversight.

The system as it stands is broken. The Chief Justice Leigh Saufley and The Maine Guardian ad Litem Institute recognize this fact as do several Senators and Legislators who have had personal experience. We have received emails from people who have also experienced frustration with a system that should be helpful but at times is not. There are scant statistics on how GALs operate within the system and no way of knowing if there are issues with an individual, group or system currently. As I said the system is broken and that is why you have been seeing news on the GAL industry. There are people who are concerned about the issue of oversight and management of GALs and are trying to fix the broken system. In the future there will be more as the issues are worked on by those involved.

Comments from the Portland Press Herald -

Comments to the piece written in the Portland Press Herald were removed Tuesday night. We managed to save most if not all of the comments and will be publishing them here over time. This one is from brotherlt:

It is pretty simple either the GAL advocates for the Best Interest of a Child or they do not.

Parental Alienation.  Definitely happens often.  The parent that practices this should never be rewarded with primary custody of the child when they/and their lawyer have practiced this by design.  In my case, I did not see my son for five months over the holidays.  Stopping my unsupervised visits for no plausible reason, however since they court had not made any ruling about visitations and let the GAL schedule it, nothing stopped her from stopping visits entirely when first GAL withdrew from my case.  Did not see my son for five months, had to hire second GAL to do this, there is no authority from the court.  When the GAL withdrew, I voiced my concern to the judge that granted her withdrawal that there was no current plan for visits in place, I was then put on a Trailing Docket for my divorce and told that it would be discussed then, I did not know at that time that a Trailing Docket continues to trail and trail, in my case 18 months.  At no time did I ever appear before a Judge, therefore if I waited for the Judge, I still would not be seeing my child.

Substance Abuse.  Drugs/alcohol/prescription drug abuse.  If you are drug or alcohol dependent, should you be able to have primary custody without even admitting you have a problem or getting treatment?  If the other parent is clean and sober and not breaking the law in anyway, don't you think that the best interests currently would be with the sober parent.

Mental Health:  If you have not worked because of Stress/PTSD or what have you for let us say eight years and have a long history of Suicide Ideation, Self Mutliation (Cutting) in front of your adult children that you have been blue papered for mental health issues and the Judge denies you request for Discovery of Non-Financial Information (Mental Health/Prescription Drug Abuse) because it give the other person an unfair advantage at trial, then perhaps it should be investigated.  I was assured that the GAL would investigate this over and over.  If you are prescribed an opiate like Oxycontin and driving your child around, you are drug dependent because you cannot quit Opiates overnight and you are breaking the law and putting your child at unnecessary safety risks.

Child Abuse/Neglect.  Over and over your child has accidents.  Did they happen because you abused that child or did they happen because you were sleeping under the influence of prescription drugs and wasn't supervising your child as you should be?  Child is burned with what appears to be a cigarette, child has multiple incidents of huge bruises that you have no idea about until you bath him or you are made aware of them by someone else like I was, you decide there seems to be a trend here and file PFA only to be told that pictures can be altered,  Nothing written about it in the GAL Report.  File incident with DHHS.  No calls, no follow up, you later find out the complaint was unsubstantiated.

There is plenty of blame to go around, however it comes down to the basics question.

What is in the best interests of this child?

In my case, it was bureaucracy, big brother (email monitoring), breech of contract (failure to  interview appropriate people in a timely manner or investigate the issues that were presented) a court system that doesn't ensure that Status Conferences are being done in the case or a Trailing Docket that never hears your case in a timely manner because they are too busy with too many cases.

So if my ex-wife is driving under the influence of her prescription drugs and nods off or judgment is clouded by the effects of those drugs and god forbid my child is seriously injured or killed.  Who is responsible.  The Mother, the Guardian Ad Litem that recommended she get primary custody, the lawyers?  I don't know the answer and I don't want to know.  I can tell you right now, Quasi Immunity would definitely be questioned and it has been questioned by me for the last two years.

The loser is the child in my case.  The system is broken because there is no accountability of the Guardian Ad Litem at this time.

Link: MPBN - Report gives Maine an F

Wednesday, April 4, 2012

Chief Justice Leigh L. Saufley understands the issue

Chief Justice Leigh Saufley understands that the process of Guardian ad litem oversight is broken and in need of fixing. In a response letter back to the Joint Standing Committee on Judiciary she indicated the need for the following:

1. A more thorough complaint process that is independent of the Judiciary
2. The creation of a program that would support GALs beyond their role of Guardian ad litem

Chief Justice Leigh Saufley has given the goal of October 15, 2012 to come back with a proposal on how to deal with these two areas. We will be following and reporting back here. 

Monday, April 2, 2012

Another view: Guardian ad litem system long overdue for reform | The Portland Press Herald / Maine Sunday Telegram

The issue of Guardian ad litem reform continues with questions about oversight and what can be done to change the badly broken system.

Another view: Guardian ad litem system long overdue for reform | The Portland Press Herald / Maine Sunday Telegram

Presented here is a response to the Maine Guardian ad Litem Institute article that came out on March 27th of this year. There is growing concern on how GALs operate in the state of Maine. Check out the the view and leave a comment. Feedback is always appreciated.

Sunday, April 1, 2012

Letters from the Front line

From the Freepress blog in Midcoast Maine comes questions and answers on child custody and the issues that come with them. Follow the link:

If you have questions about a concern dealing with a Guardian ad litem please feel free to contact us here at MeGALalert thank you.

Maine's Guardian ad Litem in desperate need of oversight

A comment written to the Portland Press Herald by Dr Collins on the issue of Guardian ad Litem oversight and the need to fix a broken system. Please follow this link:

The Scandal that is not according to the Guardian ad Litem Institute of Maine

Please check out this link to see what is wrong with the Guardian ad Litem system in the state of Maine. The President of the Maine Guardian ad Litem Institute speaks out on how his trade organization has been having meaningful dialogue - this for the past 4 years - and still the system is broken.