We Are Asking the Sun Set On LD 872

To: Members of the Judiciary Committee for Thursday, March 23rd at 1 pm

From: Jerome A Collins,  Maine Guardian ad litem Alert

Re: LD 457, the "Sunset" Bill, sponsor: Rep Matthew Moonen


We strongly oppose this bill. The sun should set  on the law, a the law itself  specifies, in October, 2017..

The original version of this law was conceived by Sen David Dutremble and me over a long afternoon, in 2012, at my kitchen table in Kennebunkport. We based our action on the facts that (a) nothing was happening at the Judicial Branch to reform the GAL program, (b) we were both hearing heartbreaking complaints from numerous victims of the GAL program that was the result of no program oversight or management, (c) there already existed a "blueprint" for GAL reform waiting to be activated in the form of the nationally respected 2006 OPEGA Audit of Maine GALs. We expanded the focus of the 2006 OPEGA report to cover all GALs, wherever they worked: Probate, Children's Protective or Divorce and Custody.

The Dutremble bill, LD 872 was born in the grass-roots, nourished by the legislative process with extensive emotional public hearings and signed into law by the Governor in late Spring 2013. It was a "people's bill" all the way. It solved "people problems" in family courts. It was a solution that grew out of long neglect by the Judicial Branch of their GAL program; it corrected a problem for vulnerable groups, who were forced to use GALs.

As not uncommonly happens, with laws created by the Legislature with strong citizen input, the Judicial Branch worked over the "Dutremble Law" using their preferred process, committees composed of "stakeholders": family court lawyers, GALs and family court judges - all with significant conflicts of interest. The law was radically  transformed from "people friendly" to "family bar and GAL-friendly". It is NO LONGER THE PEOPLE'S LAW; IT IS A LAWYERS' and GAL's LAW.. THIS RE-WORKED LAW IS NOT THE ONE WE WORKED TO CREATE. It may have the same name and number but it is a very different "creature".

The centerpiece of this "new" Judicial Branch law is the GAL complaint procedure, safely tucked into the Overseers of the Bar.

• The complaint procedure is said to be a substitute for actual oversight and nonexistent management. It is not either.
• The legislature had called for a "user-friendly" GAL  complaint procedure. It is now about as de-humanized a process as one could imagine.
• The current procedure provides pages of legalistic instructions, but no human help.
• The steps in the procedure are carried out by mail (US postal service). No names of those making decisions appear.
• The consumer making a complaint fires of a complaint into a nameless, faceless, bureaucratic "black hole".
• 100 % of consumer complaints have been dismissed without any corrective action of the mildest kind being taken. This is in the tradition of all previous complaint procedures that go back for years.

It is unclear whether these consumer complaints are viewed as legal complaints (breaking the law) or vocational complaints (competence). Once a complaint is dismissed, however, the GAL's name is cleared and removed from the record. The complaint never happened. We'd suggest that the Judiciary Committee members do a "walk through" of this process to get a feel for it. We'd also suggest that they obtain information about professional complaints from the Bureau of licensure, a very different process, a different more humane approach.

There are many other details I could mention, if I was allowed the time, but they are covered in our extensive rebuttal to Chief Judge Mary Kelly's report to the legislature. Here are the troubled topic headings:

• Consumer satisfaction survey: We dare you to ask for data.
• Financial ceilings for GAL services: Just motion the judge you need more time (and money) and the ceiling lifts.
• Reporting information systematically and computer friendly - Rep Picchiotti's bill attempts to fill this missing piece.
• Management and oversight of GALs - Sorry, it's covered by the GAL complaint procedure. It is? How?
• Enforcement of GAL Rules and Standards - Sorry it's embedded in the GAL complaint procedure. With 100% dismissal are GALs "perfect"?
• Data for any aspect of the law? What's data? Or. The numbers are "confidential", proprietary, secret.
• Double talk: not intentionally. We have to protect all parties, but numbers how can they hurt anyone except the Judicial Branch?

The Maine legislature needs to ask itself: Is this the law, you sent to the Judicial Branch in 2013? We say it has had radical surgery at the JB since 2013? We say it is now very consumer-unfriendly. Do you want to inflict it on the people of Maine? If you can't decide, if you are confused by the opposing views on this law, you need an outside, objective OPEGA study to examine the problems and give you recommendations for action. We are told that Rep Moonen has already communicated to the Government Oversight Committee (and OPEGA) that an OPEGA study would be "premature", that the Judiciary Committee needs time to review Chief Judge Mary Kelly's report (and our rebuttal report?). It is unclear to us whether Moonen was expressing his personal views aimed at stalling OPEGA, or whether he expressed the sentiments of the Judiciary Committee as a whole. If the latter, this would close further public discussion of the "sunset" bill, until you review the opposing reports and decide where to go in resolving the questions raised. We are not afraid of any OPEGA analysis, are you?

It;s an airtight system

Jerome A Collins
MeGAL

If you are unable to attend on Thursday (and even if you are) we encourage you to submit written testimony to the Judiciary Committee. In submitting testimony please send to the following email address:

susan.pinette@legislature.maine.gov

And ask that your written testimony be distributed to all members of the committee.






felicity myers GAL

Has the Guardian ad litem Problem Vanished - It Has According to the Judicial Branch

September 2012 the one public member on the Guardian ad litem  Task Force wrote a minority report to the Judicial Branch regarding issues with the task force. February 15, 2017 the Judicial Branch present their final report on LD 872. In reading the report and only this report one would assume that the problems associated with Family Courts and Guardians ad litem have been resolved or under control. It is a glowing report which may be found here - GAL Report 2-2017. In reading this report please keep in mind that while the Judicial Branch may feel that things are running like a well oiled machine. We would like to point out that this report is more self serving than anything and there are still very serious systemic issues which have only been whitewashed over. What follows is the minority report to the Judicial Branch September 21, 2012 (which has also been included in the recently submitted GAL Report.


TO: GUARDIAN AD LITEM TASK FORCE
FROM: JEROME A. COLLINS M.D.
DATE: SEPTEMBER 21, 2012
APPENDIX C

MINORITY COMMENTS ON REPORT TO THE SUPREME JUDICIAL COURT BY THE JUDICIAL BRANCH GUARDIANS AD LITEM TASK FORCE

CONTEXT:

From my position as the only public member of the 19-member committee, the only one with no personal financial interest in the Guardian ad litem problem, my perspective on the problem is quite from that of the majority of the committee. While I believe that the chairing of the meetings was fair and friendly, there were decidedly biased undercurrents among the participants. "Is there a GAL problem?" is still a serious issue for many. Why not just tweak the current system, which works so well (for GALS?) another fairly significant position. And, "if 'they' want change, make them pay for it," was the surprisingly hostile position of one prominent family lawyer. I mention these few (of many) examples of bias that I felt, to indicate a strong interest on the part of a significant number of the committee in clinging to the 'status quo' to the greatest extent possible. This protective conservatism of the majority colors the document and colors my current opinion of it.

THE CURRENT DOCUMENT:

The document I received appears to be very sketchy. It pulls together many threads of issues that wore discussed in our three meetings, but it leaves unresolved very significant questions of detail. There are no instructions for users. There are no guided forms for users. There is no explanation users in clear language the process would work, the steps they would lake, the algorithm. It is not geared towards a citizen complaint made without legal assistance. In general, user-oriented supports arc absent, It desires imitate the NH complaint process but in our estimation it falls short. Without more fleshed-out detail the document is a "tabula rasa" on which one can project ideas but without solid grounding. leaves a great deal to the input of the Supreme Court, but disallows helpful guidance to the court and forces to give the court a blank conceptual check, when we've never done business before and don't know if we share common ground.

THE UNDERLYING CONCEPTS:

What exactly is the conceptual nature of a complaint regarding a Guardian ad litem? Is it a legal complaint between two adversaries about allegations of harm or damage, or is it vocational complaint about GAL performance to an oversight agency from one or more members the public, which questions whether this worker's performance meets publicly approved/regulated standards of practice? In our opinion, the current document attempts to merge the two ideas unsuccessfully at the expense or the consumer complaint. It strives to address the vocational questions, but in a heavily legalistic context that is apt to suffocate the consumer. Part of the problem is that GAL's vocational considerations lack a standard of practice, and GALs themselves lack an experience in how to judge standard practices of colleagues. The document makes no mention of training for all concerned in oversight that might teach these skills even the use of the court room concept of "standing" belies a legalistic bias, which would be unfamiliar find constricting to consumers.

This awkwardness can be in the questions raised in committee about "standing." In consumer protection agencies, the notion of "standing as traditionally applied in court (who may participate) doesn't apply. It is off-topic. Any member of the public with direct actual experience of a worker's malfunctioning may bear witness. It enhances agency oversight. This awkwardness and conceptual model confusion makes the creation of the new complaint process worrisome. In NH it, was found after an initial placement of the complaint process in the Judicial Branch the lack of experience of this branch in dealing with vocational issues and consumer protection necessitated a move to the licensing bureau. We feel that this is very apt to happen in Maine.

THE 12 MEMBER REVIEW BOARD:

This board with 12 members, two of whom would be from the public, with the other 10 being Guardians ad litem, to us to stack the decks wildly in favor of GALS. But it is a problem, not just in terms of numbers and composition. It also a problem of how such board would function in carrying out its duties. There is absolutely no tradition amongst the GALs in Maine or within their trade organization tor self-policing. There is little in the role or experience of GALs that prepares them to address consumer protection issues. Trade organizations , such as MEGALI, (and others) are well known for their tolerance or malfunctioning even as it approaches level of public scandal. Further what standards of practice would the panel be using? How would they judge a failing? Would any the panels have experience in assessing vocational functioning? It raises a host of questions about the knowledge skill and experience necessary to make critical vocational and consumer protective judgments.

In addition, there is also the very important question of attitude towards the public on the part of GALs, They see themselves us allies of judges and of the children they deal with. They are habituated to stand apart from the parties and exhibit independence. From our experience there is very often significant defensiveness to criticism on the part of these lightly trained GALs and of their trade organization. Some of these attitudinal biases surfaced during the recent Committee meetings. Examples: "Is there a. problem?"; "Do we need a new program?"

In our view board composition and hoard training the oversight role need to be reconsidered.

FINANCING:

In brief, it is our view, as a matter of principle, that the public shouldn't have to pay to make a vocational complaint to the oversight agency about one or their workers, be that oversight the responsibility of the Judicial Branch or of the Administrative Branch. It should be noted that there is currently no charge for public complaints by Maine's licensing boards. A fee to make a complaint sends a perhaps unintentionally off-putting message to the public: your complaint will cost you. It is a deterrent; we don't really want to know. One member of the committee expressed the issue with considerable animus: "Make them pay!", and suggested complaints were "an ego issue." It raises a serious question: Does the Judicial Branch Truly want to know about malfunctioning officers of the court in order to correct these situations? "Make them pay"' is not an attitude that encourages the public to assist the Judicial Brunch in its oversight.

GAL OVERSIGHT AND LICENSING BOARD OVERSIGHT:

Although it was mentioned m the committee, the jurisdictional conflict about a GAL whose actions appear to be malpractice of their base profession is not addressed in the current proposal. It is a serious consumer protection issue that a professional could avoid corrective action from complaints to their licensing hoard by needing to address GAL complaints at the Judicial Branch first. It is a serious problem, troubling to the public. There needs to be a corrective plan developed with the licensing boards.

WILL THE "NEW COMPLAINT PROCESS" BE USED BY PUBLIC?

At the moment, then is an unofficial, recent embargo by the public on GAL complaints. This action has arisen, because many people felt that the current complaint process was demeaning, always resulted in dismissal-even in the face of serious considerations. People also felt that the seemly inevitable dismissal whitewashed malfunctioning GALS gave no consumer warning of bad actors. Will the new process be used? Hard to say, but its use will definitely be limited without out' endorsement, Your limited "statistics" are apt to be even better!

I regret having to address so many problems on the eve of submitting a proposal to the Supreme Court, but so many ideas were presented in the committee meetings without clear direction-other than broad principle-being agreed on that seeing a written proposal surfaces many concerns. These are expressed here as clearly as possible; however, I'd be pleased to explain further, if appropriate.


MeGAL has been working for Family Court change for over five years. In 2013 and 2015 we had a number of bills submitted to help bring about this change. We continue to work for this change and in 2017 we are requesting an audit much like what was done back in 2006. We encourage you to become involved in the education of family, friends, co-workers and your representatives as to what the issues are. You may also contact us at MeGALalert@gmail.com or finding us on Facebook.

Guardians ad Litem (GALs) Vendor Services Survey - Ending 2/15/2017

As part of LD 872 An Act To Improve the Quality of Guardian ad Litem Services for the Children and Families of Maine the Judicial Branch was required to survey consumers of their vendors services.

If your case is finished you have an opportunity to take this survey as a way to give the Judicial Branch constructive feedback as to how their GAL vendor did.

The Judicial Branch is requesting parents and attorneys in completed Family Court/ Law and child protection cases to answer a brief survey about the experience with the Guardian ad litem's service.

There are four survey's available. The majority of those reading this blog should take survey two. A link to the main survey page may be found here.

Guardians ad Litem (GALs) Services Survey

If you were a parent who was involved in a family law matter, please complete Survey Two entitled, "Survey of Parents Regarding Guardians ad Litem in Family Law Cases." - Survey Two

The Judicial Branch is supposed to be making a presentation to the Judiciary Committee on 2/15/2017. As part of that presentation we expect that the Judicial Branch will be showing what statistics they have collected on their vendors. The survey is 12 questions in length with opportunity to comment. It is an an anonymous survey.

MeGAL works to educate parents and family members as well as our representatives to the issues that infect our Family Court system. If you have had a problem or feel that something just is not right with your GAL or Judge we encourage you to email us at MeGALalert@gmail.com or find us on Facebook.

A Response - to the Proposed Repeal and Replacement of Maine Guardian ad litem Rules

Hon. Leigh Saufley
Chief Justice
Maine Supreme Court


Dear Chief Justice Sauflley,

I am responding to the request from the Judicial Branch for comments from the public  on the proposed “new” Rules for Guardians ad litem. In my opinion, they are badly off the mark, if their aim is to help the majority of those public consumers, who might use them to understand how GAL’s function and how to make a complaint about a GAL’s defective performance. Perhaps unintentionally, they seem to distort the aims of the Maine legislature and the Governor who created the law in 2013. The Dutremble law was aimed at clarifying Guardian ad litem functioning with appropriate boundaries and protecting consumers of Guardian ad litem services from abuse by GAL practitioners. The proposed “new” Rules, as I read them, shift aim and focus of the 2013 Dutremble law, and, by proposed regulation seem designed to defend and protect Guardians ad litem, as members of “the legal guild”. Self-represented consumers of service are out of the picture altogether.

The proposed “new” Rules are lengthy (77 pages), often ambiguous and subject to many escape clauses. There are many statements in the Rules that are followed by exceptions to the rule. This oppositional duality throughout the Rules  neutralizes and confuses the intent, meaning and strength of the initial rule, and it probably reflects the anxiety of  “stake holders” on the working committee, who created the document. They may not want to be hampered or hemmed in by any Rules.

The section dealing with consumer complaints (see page 35 RULE 9. Guardian ad litem Review Board Complaint System) about Guardian ad litem services is written in complex legal language, full of references to other laws, unfamiliar to the general public. It prescribes a labyrinthine, multi layered procedure for making a complaint. Even relatively trivial, minor complaints must follow this protocol. As I read it and imagined using it myself in a ‘pro se’ effort, I felt shut out and stymied. The complaint procedure is written by lawyers for lawyers. It also proposes that all consumer complaints be managed by the lawyers'’ “guild”, the Overseers of the Bar, considered a formidable entity by most of the public. The complaint procedure is an airtight, legalistic, time-consuming, intimidating piece of work that virtually no untrained, unrepresented “consumer” will be able to use to complain about service. Preventing complaints from self-represented members of the public appears to be its purpose. Kill all public complaints with legalistic complexity. "Pro se" be damned, is the message I read!

The most troubling problem is represented by the authorship of the proposal “new” Rules for GALs. It appears to be the work of a “Stakeholder’s committee”, almost exclusively members of the powerful “divorce industry”. The authors show no consideration for how a ‘pro se’ (self represented person) is supposed to use the arcane, complaint “tool”. As you reported to me earlier this year, a startling 74% of family court users are ‘pro se’. It is being proposed by “stockholders”, who authored it, that this 74% majority be given a complex, “legal tool” that they will be unable to use in making a complaint about GAL service. The Rules, as a tool, by their complexity, would exclude the majority of public users from making a complaint on their own. Shouldn’t ‘pro se’ persons also be considered significant “stakeholders”? Their stakes are their children, their time and their life savings; not professional financial advantage. Their kids are priceless to them (and to all of us) and represent future, valuable human resources for Maine. Why are ‘pro se’ stakeholders denied a seat at the table that would reflect their proportional, numerical dominance in courts? It might be viewed as an exclusionary problem of vast proportions that needs correction in the interest of public fairness, and in the interests of reality. It is an awkward commentary on family courts in a democratic society.

We need to understand the present reality that Family courts at this time are no longer  the exclusively purview of an  elite, professional group of the legal profession when 74% of users are self-represented non-lawyers! It is time for everyone to awaken to these startling facts and address the  major, unstoppable systems change that is going on right now!

It also should be noted that the public complaint protocol is the only “quality assurance” mechanism for the public governing the actions of Guardians ad litem. Without supervision, with just 18 hours of “education”, with quasi judicial immunity, with no meaningful “oversight”, a complaint from a consumer is the only way to request  major or minor “corrective action” for a malfunctioning Guardian ad litem. If this procedure is so complex as to be unusable by non-lawyers, Guardians ad litem are essentially in a position of being granted secular infallibility by the Judicial Branch. One has to ask rhetorically: “Don’t GALs ever need some form of  correction; are they always “perfect?” Can’t one find a more responsible way to correct and improve their function?

My opinion is that the Judicial Branch needs to go back to the drawing board and begin again in writing new Rules for GALs. It needs to include proportionally the biggest group of players in family courts, the 74% ‘pro se’ users, on any planning committee addressing “officers of the court”. It needs to approach the whole issue of GAL management in a much less defensive, overprotective manner. It needs to listen to and care about the  systemic changes catalyzed by amazing numbers of ‘pro se’ representatives. The present document is “tone deaf” to ‘pro se’.  Is this its aim, or is it impossible for the Judicial Branch to escape the political influence and power of the divorce bar?

We sincerely hope this document can be rewritten in tune with current realities, and with participation of those who are major users of the GAL system. Would it help the Judicial Branch to overcome the powerful, internal, self-serving, lobbying politics of the “divorce industry Bar”, if there were to be  grass roots legislation empowering ‘pro se’ representatives on JB committees and throughout the family court system?

Your 74% ‘pro se’ statistic is a powerful number that  cries for legal fairness and appropriate democratic empowerment!

Sincerely,

Jerome A Collins, MD
Kennebunkport, Maine

For further information on the Family Court and divorce industry crisis please email at MeGALalert@gmail.com or find us on Facebook.


For further reading:

2014-05-28 PROPOSAL FOR AN AUDIT OF ‘PRO SE’ REPRESENTATION IN MAINE FAMILY COURTS


2014-03-18 Maine Voices: We must work together to ensure justice truly is for all in Maine - a response