Hon Leigh Saufley
Supreme Court of Maine
Dear Chief Justice Saufley,
Re Family Law Advisory Commission Review of Proposed Rules for GALs
Although Maine Guardian ad litem Alert has not been asked for input on the commission’s review, it is a public document, and we have read it with interest. For the sake of Maine’s children and families, our consumer base, we felt that there was an important missing piece in the review, a grassroots/consumer perspective. Our perspective has been gained through an extensive network of friends and their families all over the state, who have shared their Guardian ad litem (GAL) experiences with us. We have a better overview than most courts about which GAL names appear frequently as problems, as well as the recurrent, repetitious nature of their malfunctioning. From our extensive (and growing) contacts- in person, by phone and via e-mail- we have acquired a lot of data. We have a very good idea of the operational problems associated with Judicial Branches GAL program. It is important consumer data (and viewpoint) that is missing (and much needed) in your deliberations. In addition, we have also collected systematic consumer satisfaction data that suggests that you have “GAL product problems” with your market.
Herewith we offer a “consumer (or user) perspective”. We hope it serves to helpfully complicate and enlarge the standard views of your “stakeholders”..
1.) Solving the GAL problem: first legislation and now implementation. From the tone of the Commission’s review, many of us have asked, “Does the Family Law Advisory Commission (FLAC) truly believe that there have been Guardian ad litem problems tied to dysfunctional structural issues? Or are the problems still perceived as noise from “disappointed litigants”?” The judiciary’s answer to this isn’t clear to many of us. The legislature, the bureaucracy, the Governor and significant numbers of “grass roots” consumers of GAL services have been resounding in their documentation that there have been problems with the GAL program and have been determined to solve them. However, the Family Law Advisory Commission’s perception appears less certain. Because a problem can’t be solved, unless it is recognized, the opening paragraphs of the Commission’s review, loaded with accolades for GALs, is troubling to past and present GAL service consumers. It suggests to the grassroots a FLAC perception of GAL problems, more about sentiment than substance! Furthermore, such FLAC praise, with no numerical data behind it, is read by many as a statement of overt prejudicial bias that favors GALs. How will this sort of rosy sentiment and unqualified support of GALs impact the implementation of PL 2013 C 406? Consumer input in the Commission’s review might have balanced Commission’s glowing praise of GALs with less rosy consumer experience. The new law was enacted to repair significant scandal in the GAL program.
2.) From our reading of it, there is some wary reflection in the review about the newly mandated “scope of GAL duties”. GAL functions have been significantly (and deliberately) circumscribed. Over the 39 years of the GAL program, there have been significant “mission creep”, some by court usage, and some by GAL’s “creative improvisation”. “Mission creep” over many years has resulted in a serious, “cost inflation” of unrestricted billable hours for GAL services. It has also lead to GAL activities for which GALs have no competence and to myriad fanciful “improvisations”. To mention but two especially egregious examples from many : a need for a child to spend the weekend alone with his GAL and the notion of a GAL seeking a surrogate father for another child, whose father was out of state. Neither of these “creative” ideas, appeared in any version of Rules for Guardians ad litem! There has been widespread public demand that the GAL role be limited, clear, well bounded, and that activities beyond the published role description be considered malfunctioning and possible malpractice.
3.) From its design, the consequences of PL 2013 C 406 are clear, well-recognized and very much “intended” by its legislative/public architects. In clipping the wings of “innovative” GAL activities, it will undoubtedly expand the judicial/court role and should make for a much busier time for judges. There has been very deep public concern that the Guardian ad litem program had come to function, unofficially, like a junior-judge program. The term “judicial out sourcing” has been used by some of the public to define this phenomenon. It has unofficially (and perhaps unwittingly) allowed some GALs to presume that they have vast judicial authority and power. It should be remembered that these are court appointed persons, who have operated within a deficient administrative structure: no functional oversight, no supervision, no functional public complaint process, and quasi-judicial immunity. These badly designed structures have been the structural basis of much unaccountable activity by GALs. Poorly designed program structures have been primarily responsible for much personal hardship for children and families, a secondary result of bad program design.
Our sense is that judges are apt to have more work as an intended result of a reduced GAL role. It challenges judges and the Judicial Branch (and “consumers”?) to find intelligent, user-friendly methods of processing a heavier work load. Ideally, we would hope that this pressure might impel family courts to significant, further reforms in the public interest.
IDEAS TO CONSIDER. (a) Aiming at a reduction of the adversarial m.o. in custody disputes might be one such goal. (b) A starting presumption in all divorces of equal competence in parenting their child (until proven otherwise) might be another point. (c) Greater referral to and use of formal children’s protective services for child endangerment issues might be yet another, better way of addressing allegations of unfitness to parent. (d) The “child’s best interest standard” in our opinion also needs review. As we see it, it is a concept guaranteed to generate intense bad feeling, challenges and contention, as every parent with personal child rearing experience inevitably questions the special expertise of GALs, with limited training, playing God with Maine’s children! (e) A move to strengthen ‘pro se’ legal representation through court sponsored educational programs and modifications in court procedures to further this growing national (and Maine) trend, and (f) a broadly based Maine Family Court Reform Commission might be a way to redesign family courts in a more child-friendly/ user- friendly manner.
But in the obvious increased work load for judges resulting from a diminished/ circumscribed GAL role, one hopes that this “opportunity/ crisis will not go to waste”!
4.) The Commission appears to be perplexed about the issue of “goals” and “standards” in the stakeholder’s report. It was the intent of the architects of the law that the goals of the GAL program should define the aims of GAL activity and that these should be broadened to include children and families, as well as the courts. In our view, the aim should be for GALs to be one element in a process involving the parties, their lawyers and the court in working together to facilitate and stabilize the divorce and custody process. Not to include those who privately pay extensive costs for the GAL service has skewed this service, has raised questions about the nature of the GAL “contract” with parties and the court and is a frequent source of bad feeling. In many cases, when handled insensitively, it is the source of GAL attitudes that are deeply offensive to the public: “Even though you pay, we are not supposed to be doing anything for you- it’s the courts we work for!” Being included in the program’s stated “goals” is subtle but important change for those who pay for this service and all parties to the process.
Rules and standards of conduct are the instructions for how GALs are to deliver their service and how to achieve the goals mentioned above. To us, they are the directions for how to act in aiming at the aforementioned goals. Both goals and standards are aimed at clarifying the “GAL contract” with the public and the courts. Both give the public a measure of what a GAL is expected to deliver. They respond to the consumer questions: what is the “deal”; what is the “contract”? Standards provide an ethical base for how rules are to be executed.
5.) The complaint protocol is a vitally important topic for all “grassroots consumers” of GAL services. This is because, in a system with no oversight, no supervision, no visible enforcement of Rules and Standards for GALs, serious issues of GAL boundary control and “mission creep”, there is a normal managerial need for “corrective action” when GALs are malfunctioning or malpracticing. Although Judicial Branch representatives insist that there are safeguards to deal with GAL malfunctioning, if they are used properly, we have encountered significant numbers of consumers (and their lawyers), who have experienced failed attempts to use these “safeguards”. They don’t appear to work reliably in the many cases we know of. It would appear to us that a well-functioning, well designed complaint protocol is the only tool for “grassroots consumers” to obtain “corrective action” on poor GAL performance. It is also the only tool for signaling to the Judicial Branch that there are problems with a GAL or with the program.
Meaningful corrective action for GALs of any sort appears totally reliant on consumers making a successful formal complaint. The Judicial Branch has no apparent regular, systemic , internal assessment tools for regularly evaluating GAL performance, nor is there a standard “quality assurance” protocol for its GAL program. The Judicial Branch therefore is in the position of relying on consumers to bring defects in individual GALs and in the program to the attention of “management”. Complaints are about all that is available for JB managers to gain knowledge of how its GAL program is working. Given these considerations, the complaint procedure had better work, or the Judicial Branch is effectively giving GALs permission “to do their own thing” with no consequences! And we are back to “square one”!
A legalistic complaint procedure for GAL performance is not a reasonable substitute for the JB having some internal standardized management responsibility for QA and for addressing on its own GAL malfunctioning on a regular basis. No organization is perfect, yet the Judicial Branch has no way on its own of identifying or correcting minor or major malfunction in GALs. The operational hypothesis appears to embody the idea that all GALs and the program are “perfect” until legally proven otherwise!
As consumers of GAL services, we have particularly strong objections to the concept of using the Overseers of the Bar as the locus for GAL complaints. Our concerns are:
a.) The nature of the Overseers of the Bar: It is a private, not for profit professional “guild” that is independently financially supported by its lawyer-members. It embodies the language, culture and adversarial conceptual perspective of lawyers, which is alien to most consumers (especially ‘pro se’), who might wish to make a complaint. As a private, not for profit organization, it lacks any specific public accountability for its actions.
b.) To us, there is an absence of clear lines of accountability from the Overseers to the Judicial Branch or to any government entity. We would expect that, at some level, it is accountable to those who support it financially, its dues-paying lawyer members. The Overseers of the Bar has no chain of command connecting it to the Judicial Branch. It is quite independent of the Judicial Branch. We ask: will (can) it have regular Judicial Branch managerial review of its functioning regarding consumer complaints? How might complaints about the Overseers’ handling of particular complaints be addressed, or is it expected that there will never be complaints? How will the Judicial Branch know if thing go less well that “perfectly”? Where is the public oversight? Will there be program evaluation?
c.) The, to us, inevitable, professional, cultural bias of a lawyers “guild” towards its lawyer members who finance it, will be understandably intimidating to consumers with a complaint, even if represented by an attorney- more intimidating if ‘pro se’. Consumer’s trust and faith in a fair and equitable complaint process is very apt to be impaired by having to complain about “an officer of the court” to a lawyer’s guild organization!
d.) We have been made aware of the previous experience of the many members of the Maine public in addressing complaints about lawyers to the Overseers of the Bar. The interaction is not encouraging. Why would their handling of a new complaint process will be any more “consumer friendly”. Any new complaint procedure, as a minimum, should have clear written instructions in how to make a complaint, a written explanation of what constitutes a proper complaint, guidance on the steps in the process and people who can answer questions about process and procedure. It should be doable ‘pro se’.
e.) We question whether an adversarial model is one designed to correct and repair individual GALs or a GAL systems problems? It distorts the question of basic internal program management, by squeezing it into an adversarial legal conceptual framework. Prove we made a mistake vs. how can we improve the quality of this person’s work and improve the program quality? It is a defensive posture as opposed to a managerial corrective posture. It is no substitute for internal quality assurance.
f.) Use of the Overseers is a very cumbersome way of addressing “quality control” and consumer protection issues in the GAL program. It passes the buck for the initiation of problem solving- individual and programmatic - to consumers and eliminates the JB from addressing corrective interventions with GALs. The JB selects them and trains them, but assumes no regular formal management responsibility after that.
g.) A limited numbers of GAL complaints from consumers should in no way be taken as a signal that the GAL program is nearly "perfect". It should be read as a condemnation of the complaint process that is cumbersome, opaque and user unfriendly that by its very structure and process disrespects and deters consumer "feedback". It should also be read as a sign of consumer fear of reprisal from a system that is defensive of GALs and hasn't encouraged "corrective input" from grassroots sources, while conducting no formal program evaluation itself.
The Commission’s expressed concerns about “consumers (or their lawyers) abusing complaint procedures in ongoing active cases is a top down concern. It needs to be contrasted with the opposite viewpoint of many consumers’ bad experience of being stuck with a malfunctioning GAL remaining on the case until it is over, causing untold damage and harm to children and families. Don’t remove the cancer until all of the patient’s other issues are taken care of! It is an excellent example of the court legalistic concerns vs. the consumer’s human concerns, and they are almost polar opposites.
h.) Our final concern is that we have heard thoughtful friends raise constitutional questions about the apparent “out sourcing” of its oversight/complaint requirement by the Judicial Branch to a private, non-governmental agency, with no formal public accountability. Can the Judicial Branch pass its designated oversight powers to a private agency, a professional guild, with no clear, visible accountability to the government of Maine and its elected officials?
In the end analysis, we would maintain that true consumer input (as opposed to public representatives) is badly needed by Family Courts in their work and in the design of whatever changes they make. A professional, elite, top down conceptual ‘modus operandi’ can easily get out of touch or at cross-purposes with those who use the service. Being out of touch exposes the courts to bad feeling, bad results and myriad misunderstandings with those who use (and pay for and vote for) their service. As you are undoubtedly aware, there is widespread disaffection with the Family Court system in Maine at the present which has lead to .the passage of 2013 C 406, a comprehensive reform of Maine’s Guardian ad litem program, the first in 39 years. The law is not perfect, but it is a beginning, and as such we stand behind it. Our remarks above are intended as a respectful expression from the grass roots to those charged with implementing the law. We have tried to be respectful but also frank in expressing a few qualms. It is vitally important for Maine’s court system to know what consumers of your family court services are thinking about implementation of the law. We stand ready to help Maine’s children and families- and the Family Courts- in whatever way we can.
Jerome A Collins, MD
If you have had an experience with a Guardian ad litem (or Parental Coordinator) please contact NationalGALalert at NationalGALalert@gmail.com. In addition for current topics and discussions please find us on Facebook.