Children, Guardians Ad Litem, The Law, and Society
Published to: 000111, 000112, 000114, 000116, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on November 24, 2012 10:34 pm
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I spent last Friday at a seminar for guardians ad litem, or guardians in law, for children. It was not the seminar I wanted or needed, but it crystallized many thoughts I have been having. I think I can tie the subject of guardians ad litem to larger, very important, themes, but you will have to bear with me.
First, the basics:
1. The law recognizes that many people are unable to protect their legal rights.
2. These folks are under a “legal disability”.
3. As I mention in another article, http://tinyurl.com/752vq78 , competent people can be temporarily under a form of legal disability. These people can execute a power of attorney to give another person the ability to sign their signature:
a. A durable general power of attorney goes into effect immediately upon signing and delivering, and gives the attorney in fact the power to sign nearly anything his principal can. When recorded in the county clerk’s office, this power includes real estate transactions. Under the Uniform Power Of Attorney Act, a durable general power of attorney remains in effect if the principal becomes incapacitated.
b. A medical power of attorney goes into effect when the signor becomes incapacitated to make medical decisions.
c. A medical surrogate is a person appointed by operation of law to make medical decisions if the impaired party did not have the foresight to have a medical power of attorney.
4. Many West Virginians will remember the term “committee”. This was a person who applied by a petition to the county commission to handle the affairs and protect the person of an incapacitated person, often an elderly relative.
5. Such persons are now called “conservator” or “guardian”, or both.
6. The conservator manages the impaired person’s money and property.
7. The guardian manages the impaired person, perhaps by placing them in an assisted living facility or hospice care.
8. Petitions to become a conservator/guardian are heard by a commissioner appointed by the Circuit Court.
9. A mental hygiene commissioner hears petitions for the involuntary commitment (to a secure facility) of persons who are mentally ill or cognitively impaired, or retarded, or addicted. and who are dangerous to themselves or others.
10. A living will is an “advance directive” related to the “medical power of attorney” above, but I am highly suspicious of a document that gives a doctor the power to withdraw or withhold treatment based upon hypothetical facts that the signor can barely imagine.
12. I sense the living will proponents are driven by the economics of medical treatment. Why else to they routine paint word pictures of “tubes sticking out the body”. I say put the decision in the person or persons who care most about you, and give them some guidance about your values and your wishes.
13. Then there are post-death wishes. This group is of people is REALLY impaired, since, short of a seance, they are beyond any ability, ever, to communicate with us.
14. Their wishes are determined by their “last will and testament” or, if no will, by W.V.’s laws of intestacy, which are beyond the scope of this article.
Are you with me so far? I ask because I haven’t got to my subject yet!
That subject is the group of lawyers known as guardians at litem, or guardians in law. Think of them as the children’s lawyers.
The WV Supreme Court of Appeal has recently issued a case, Palmer v. Justice, January, 2011 suggesting the standards under which a guardian ad litem, appointed to represent a child or children, should operate. As a result of that case, a new set of written standards, Rule 47 of the Family Court Rules, have been issued.
My thought was the potential guardians just need to study that case and those rules, but I was wrong.
Most, but not all, of the 1000 or so lawyers who attended the seminars, or ordered the cd’s, want to be appointed as guardian for children. The children’s “impairment” or “legal disability” is their age. They remain under this disability until they are eighteen years old.
As you can see from my previous blog post, http://tinyurl.com/co75n42
which includes a summary of the topics and speakers at the G.A.L. seminar, and every other seminar I attended in 2012, there were many intelligent, experienced, dedicated, and compassionate speakers at the guardian ad litem seminar.
Why then was there a consensus among my colleagues that the seminar missed its mark? In my opinion, here’s why:
1. It attempted too much and achieved too little.
2. It put two groups together, lawyers who serve as guardians ad litem in juvenile abuse and neglect (circuit court) cases and lawyers who serve as guardians ad litem in family courts and failed to clarify their distinctive roles.
3. Ah, you say, “Hunter thinks their should have been separate seminars for each group.” Not so!
4. There should have been just one seminar, and it should not have had separate tracks for part of the seminar. We should have been trained in the specific standards required by each court.
5. My perspective is as a lawyer who will be dealing with Guardians at litem both in Family and Abuse and Neglect (Juvenile) Court.
6. It is startling to me how little the folks who spend most of their time in juvenile court understand the issues and standards of family court.
7. There are some family court lawyers who accept Juvenile court appointments, but the very strict time constraints in juvenile court make it hard to practice in both courts. And, the court appointed nature of guardian ad litem work means that lawyers acting as guardians ad litem must be willing to work for less that $100/mo., something someone like me, with four full time staff members, cannot do.
8. One fellow bragged, and I know of at least one other who does the same thing, that he practices out of his car, with virtually no staff. To such folks, and to lawyers who live off of court appointed criminal defense and mental health work, this hourly rate can seem at least acceptable. It will not “pay the freight” for a modern office.
9. What I learned from listening to the various speakers is:
a. There are way too many metaphorically blind people holding on to many parts of a very big elephant. Most of them are not getting the big picture.
b. Putting a panel of distinguished guests on for 35 minutes gives each one barely 8 minutes to get her/his point across. A four person panel should have at least two hours. These panels were a waste of our time.
c. This eight hours of training was the result of Palmer v. Justice, above, and Rule 47 of the Family Court Rules. So, we should have focused on those standards, right?
d. Instead of being taught the current standards, we were addressed by a bunch of people telling us what she or he was already doing, either as a judge, a guardian, a social worker, or a counselor.
e. Does the state really want the lawyer to take her charge to her old college alma mater to motivate the child into studying hard? Really?
f. Has anyone thought about the fact that guardians ad litem and social workers have tremendous power over these children, to visit these children at school, interview who they want, to spend time with the children away from their parents, and to summarize their findings based on their own values, and make recommendations that will profoundly affect their future? Not one word was said about the possibility that a legal guardian is in a perfect position, if so inclined, to abuse these children sexually.
g. The new minimum expectations of a guardian ad litem, to review the file, interview witnesses, interview the parents, interview the child, and write everything into a report by a specific deadline simply cannot be achieved with existing funding. And greater funding will not be possible.
h. A lame assertion that a child can be guided towards academic excellence, as a counter to bad parenting and a bad home environment, just did not hold water with me.
i. I received the essential standards of Palmer v. Justice, and Rule 47 from Prof. Margaret McDiarmid’s one hour presentation at the Family Law C.L.E. at the Law School three weeks ago. What I heard at the GAL seminar was conflicting and confusing.
j. There was no real effort to reconcile the huge differences between abuse and neglect court and family court where the fundamental assumptions are different, the resources are different, the judges are different, and the lawyers are largely different.
k. Abuse and neglect court assumes there is…………………why, ah…………ABUSE AND NEGLECT!
l. Family Court assumes that the parents are fit.
m. One of the G.A.L. seminar attendees asked a question that I liked. She went on a tirade, expressed exasperation, showed anger, and made the speakers uncomfortable. She vented her anger at what she perceived to be arrogance by prosecutors and social workers and a system that all to often favors removal over rehabilitation. The next speaker voiced agreement with her views.
n. Too many speakers at this seminar had no clue what family court (divorce) lawyers do! They were used to having multidisciplinary teams, social workers, counselors, teachers, and others available to the families at no charge.
o. I actually heard an admission that “overlap rules” designed to get the juvenile court and the family court to work with one another had not worked, “Because we have only had 5-6 years to implement them.”Five or six years?!
p. The questioner voiced her belief that as soon as the social worker hears there is a family court case, they tune it out under the theory the parties will fight it out or the family court will handle it. That has been my experience.
q. The social workers are now having to follow a computer program that drives the process and removes judgment and initiative. We in family court are pretty much ignorant of these standards. Reading one of the reports the program generates causes headaches and confusion.
1. I believe that Rule 47 and the eight hours of training have failed to establish realistic, consistent standards our guardians ad litem can follow. 2. I believe that the ignorance of WVDHHR Child Protective Services workers of the Family Court and its standards makes it impossible for them to work effectively with family law lawyers and guardians.
8. I believe our society has certain inherent flaws:a. Abundance, and an economy driven by personal consumption and gratification; and scarcity, among many of our citizens.
b. Exposure of its citizens to environmental toxins, chemicals, pollution, dangerous drugs, processed, low nutrient, high sugar, food, and a constant stream of informational garbage.
c. The impossible conundrum that the strongest source of our societies values, its faith based religious component, tends to rely on “our guy had the truth” arguments. I have talked about this in my blog article, “Burt’s Views on Religion and Religiosity”, http://tinyurl.com/6lu7dyx.
d. Our own church here in Buckhannon has had attendance drop precipitously. Some would blame our less than charismatic minister, but our district superintendent preached last week and revealed more than she intended. She pointed out that 100 years ago 85% of families attended church regularly. Now it is 20%, and in ten years, is projected to be 10%. She warned out society was becoming atheistic. She wants us to return to our ancestors faith, of the 1800’s and earlier; faith in the supernatural.
e. She was very inspiring, but what I our churches can accept is we cannot expect our people to believe what our ancestors believed before Darwin, Einstein, and Watson and Crick. What in the world are we doing justifying good behavior by supernatural claims? How can we maintain our “can’t helps” if we must believe water can be turned into wine, people can be brought back from the dead, and a mentally ill woman actually had demons in her that can be cast into a flock of sheep by a charismatic leader.
f. Proponents of the secular values, and the “new atheists”, just cannot articulate to my satisfaction how we can go forward without religion, and the advocates of religion cannot convince me that we can return to the ignorance and superstition we relied in the past on to keep people in line before we had the knowledge of modern science.
g. Modern American education seems unable to foster curiosity, broad learning, a quest to know who we are, how we got here, and where we are going.
h. The digital revolution allows constant social chatter, (which I greatly enjoy by the way), online porn, terrorist cells to communicate and collaborate, fantasy sports and gambling, near instant entertainment opportunities, in music, video streaming, and a strange thing called FARMVILLE. Why do my FB friends need so many sheep??
i. It also allows instant access to hundreds of thousands of free college courses, Wiki-pedia, whe largest encyclopedia in history, vastly improved communication and productivity, and instant access to the wisdom of the ages.
Please note, I have no easy solutions to the problems of our society. I am somewhat proud that I have been able to identify them. With the American family falling apart, our law enforcement and courts becoming overwhelmed, religion on the wane (with nothing clear to replace it), the challenge to the guardians ad litem is a daunting one.
We can fix the problem of the G.A.L. seminar easily, with a tight/concise, one hour, video presentation by someone thoroughly familiar with family and juvenile court, reminding them of their basic responsibilities. Send me the DropBox link, and I shall be happy to view it.
We need new, enlightened, thinkers, focused on technology, education, order, problem solving, and the essential “can’t helps” our struggling species must adhere to if we are going to survive.
This post was written by Burton Hunter