2013-04-11 / News

Reform for guardians ad litem under way

By Tracey Collins
Contributing Writer

BIDDEFORD – Eight years after his divorce, state Sen. David Dutremble (DDistrict 4) is lending his political support and personal experience to reform the laws that govern court-appointed guardians in family matters.

On March 28, Dutremble joined fellow lawmakers and citizens from York County to testify at a public hearing of the Maine State Judicial Committee in Augusta.

“Prior to my divorce I had never entered a courtroom as a defendant. I can assure you, the appointment of a guardian ad litem was one of the worst experiences of my life – and I am a full-time firefighter,” said Dutremble during his testimony.

The guardian appointed during his divorce suggested his work schedule as a veteran firefighter would not be healthy for his children and recommended he change jobs.

Since 1979, guardian ad litems have been appointed by the Maine Department of Health and Human Services under Title 22. In 1994, the statute was extended to include courtappointed guardians in Title 19 family law matters. According to the judiciary, as the number of divorces and other stressful family matter cases have increased, so too have the needs for court-appointed parties to represent the best interest of children caught in the crossfire of contentious family matters, such as custody disputes. The problem, said Dutremble, is that the system is skewed to benefit the divorce industry, not the children caught in the middle.

According to figures provided by the office of the Maine District Court, there are 297 guardians in Maine; 81 percent are lawyers, 15 percent are licensed mental health professionals and four percent do not possess either of these professional licenses.

Kevin Martin’s divorce was very contentious. As a result, the Biddeford resident and his ex-wife have been charged $34,500 in guardian fees over the past five years.

A guardian was first appointed by a magistrate because Martin and his spouse disagreed on how much visitation he should have with his son.

“The GAL is supposed to talk with all parties involved, but she didn’t speak with any of my character witnesses,” Martin said.

Because the case was not yet scheduled, Martin’s only recourse was to complain to the existing judge. After 20 months of litigation the judge disregarded the guardian recommendations against him and set custody terms. A year later, Martin filed a contempt of court order over visitation rights and his wife countered with allegations of abuse. This time Martin was denied any contact with his son while a new guardian investigated.

“My GAL was not a licensed clinical social worker nor an attorney. I am a master plumber and I have more requirements and oversight of my work than my GAL received. What qualified her to make decisions about what was best for my child? I have never been convicted of a crime, but because of the word of one person, I lost months of time with my son,” Martin said.

Martin said the new guardian had been given a $3,000 retainer but it was used up in less than two months.

“She wanted another $3,500 and when we couldn’t pay her, she filed a motion to be recused,” Martin said. “The second GAL’s findings were the total opposite of the first GAL. The judge didn’t accept her recommendation either, but instead of focusing on the inconsistencies, he seemed more worried if everyone was getting paid.”

Complaints over how guardian at litums investigate cases, the influence they carry over final custody rights, and the amount of money they can bill to individual families are the genesis for reform.

Dutremble explains that under Title 19, a court-appointed guardian’s fees are paid for by the families involved.

“GALsinfamilycasesareusuallyattorneys or social workers,” Dutremble said. “There is no job description, professional oversight or training. A GAL can charge an hourly rate at their own discretion, piling on fees beyond what we think is necessary.”

Chairing the hearing for the judicial committee was Saco Sen. Linda Valentino (D-District 5). Valentino sponsored LD 552, An Act to Amend Guardian ad Litem Laws. The bill places a cap on the amount that guardians can charge in family matters. It also transfers all oversight to a guardian review board managed by the Overseers of the Bar, an organization within the Judicial Committee responsible for licensing and investigating attorneys. Dutremble, and a group of York County citizens known as ME GAL Alert, say this is a conflict of interest.

“The majority of GALs are lawyers. Transferring oversight of a new GAL review board to the Overseers of the Bar eliminates public accountability,” Dutremble said.

Instead he is backing two other bills: LD 872 – An Act to Improve the Quality of Guardian ad Litem Services for the Children and Families of Maine – would impose more structure, training and oversight of GALs.

LD 975 – An Act To Ensure Accountability of Guardians ad Litem and Parenting Coordinators – would eliminate the current quasi-judicial immunity for guardians, allowing them to be held financially and legally accountable for their decisions. In other words, they could be sued.

Ilse Teeters-Trumpy is chairman of the Family Law Section of the Maine Bar Association. She cautions against stripping guardians of their quasi-judicial immunity because it will impact the larger majority of them appointed in Protective Custody (Title 22) matters.

“The majority of GALs work pro-bono or for very limited fees. The state of Maine receives federal funding by ensuring that a GAL is appointed in every Protective Custody (Title 22) matter. If no GALs wanted to participate in the process as a result of the loss of immunity, the state would lose valuable child advocates as well as federal dollars,” Teeters-Trumpy said.

Dr. Jerome Collins of Kennebunk is Dutremble’s constituent and one of the leaders of ME GAL Alert. A retired psychiatrist, Collins became involved after a negative experience with the guardian assigned to his son’s divorce. The mother of his 7-year-old grandson had documented episodes of alcohol and prescription drug abuse. To avoid jail time the mother moved out of state with the child. When forced to return to serve her sentence, she drove the child 2,000 miles in an unregistered car, with a revoked driver’s license. When Collins complained, the guardian sided with the child’s mother. The guardian also recommended supervised visits with his grandson.

“Supervised visits are required in situations where there has been evidence of child abuse. There was absolutely nothing of this sort in our case and we had to go to court to have this irrational idea removed,” Collins said.

Collins points to a report done in 2006 by the governmental oversight group OPEGA, the Office of Program Evaluation & Government Accountability.

It found 11 issues that required immediate action on behalf of the judicial branch. The list included the creation of accountability, better job descriptions, financial caps and professional oversight.

“It was a total embarrassment to the judiciary, and they just brushed the findings under the rug. In the meantime the complaint process is broken. There are no instructions about how to file a complaint,” said Collins. “There is no accountability and no recourse for people wronged by this system.”

Mary Ann Lynch, who is government and media counsel for the Maine Judicial Branch, said the OPEGA report only evaluated guardians working under Title 22 in child protective custody cases.

“There have been measures taken since 2006 and there is a clear complaint process on our website, but we can’t be advocates for people filing a complaint because we must be neutral and impartial,” Lynch said.

She also explained that guardians enter highly charged, individual situations to make difficult decisions. Their job is to interview all parties in a dispute and make recommendations to the court based on their findings. “They are not a mediator, they provide testimony to the court,” Lynch said. “The judge has the final decision and anyone can cross-examine them.”

Lynch said 7 percent of all family law cases that involve children are assigned a guardian. In many of those cases, the two parties do settle.

“If the parties can’t work to a settlement, in the end a judge will decide. In litigation there is always a winner and a loser. It’s rare that both parties come out of a trial happy with the outcome.”

Although there were many people speaking out against the system at the public hearing, Lynch reports there were only eight filed complaints about family appointed guardians last year. Six of those complaints involved pending cases. There were 15 complaints filed the previous year.

“We know that Dr. Collins has been telling people that the complaint process is broken and not to file their complaints. But we can’t very well do anything about a situation if we don’t know about it,” Lynch said.

Kevin Martin did file a complaint and the judge eventually overturned the guardian’s testimony, but not before he acquired $160,000 in legal fees, he said. Martin’s understanding is that once you file a complaint and a judge rules there is no cause, you can’t complain again.

“The leaders of ME GAL Alert told me to wait this time to file a complaint until the legislation is changed. I plan on suing the GAL,” Martin said.

After hearing three hours of testimony on March 28, Sen. Valentino said the next step is to weigh the content of all four proposed bills at a workshop scheduled for this week, Thursday, April 11.

By sponsoring LD 522, Valentino said she is making sure the issue gets the attention it deserves and the committee will look at the number of complaints.

“This is a very large issue and it deserves the time of the committee. We will look at the testimony from those aggrieved by the process, those who oversee the GALs and the GALs themselves. I can’t speak for the entire committee but I imagine we’ll consolidate all of this into one bill that definitely addresses the need to have a (better) complaint process and the need to have certifications and qualifications,” Valentino said.

Valentino added that the biggest unknown is how to fund reform and who will oversee and implement it. “Without a doubt we heard loud and clear that there is a problem. The committee is prepared to tackle the issue and recommend a fiscal note before it goes to appropriations.”

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