Opinion
No. DO-1819882
January 16, 2007
MEMORANDUM OF DECISION
On December 5, 2006, the public defender moved to have the guardian ad litem (GAL) in this matter removed for violation of the rule of professional conduct (Rule 4.2) that disallows another attorney from speaking to a party that is presently represented by an attorney. The public defender recited in her motion that her representation of the child was known to the GAL, that the public defender by letter told the GAL not to meet with the child, and despite this notice, the GAL visited the child on two occasions.
The court conducted a hearing on this motion on December 18, 2006. The court has concluded after the hearing, noting the distinctions between facts as set forth in the motion and the testimony elicited, that the rules of professional conduct were not violated. The facts developed at the hearing indicate, however, that a new GAL should be appointed here, as discussed below.
Regarding the alleged violation of the rules of professional conduct, including Rule 4.2, the court does point out that the Commission on Child Protection is in the process of developing guidelines as to the role of the GAL in delinquency matters. Further the court relies on the testimony of attorney Christine Rapillo, director of juvenile delinquency defense, Chief Public Defender's office, that Rule 4.2 is not consistently or evenly applied in juvenile matters as regards communications between a GAL and the respondent child.
In Tayquon H., 76 Conn.App. 693 (2003), the Appellate Court highlighted the delicate nature of the relationship between the GAL and child's attorney, when separately appointed. The Commission on Child Protection must promulgate guidelines that take into account the GAL's duty to convey to the court the position and best interest of the minor while preserving the constitutional rights of the child when represented by the public defender or other attorney. See also In re Dobson, 212 A.2d 620 (Vt. 1965) (without a GAL, the attorney's representation of the child "amounts to nothing in contemplation of law.") (citations from 1847 to 1965 omitted); In Re D.B., 587 A.2d 966 (Vt. 1991): "[T]o disqualify minor's guardian ad litem, it must be shown that the conflict between the minor and the guardian ad litem interfered with the minor's exercise of some constitutional right." (Citation omitted).
One witness for the public defender at the hearing was attorney David Atkins. At the conclusion of his testimony, the court indicated that he had provided expert witness testimony as to the provisions of Rule of Professional Responsibility 4.2. The court declined to recognize attorney Atkins as an expert in the application of Rule 4.2 to the GAL role in the juvenile delinquency context, due to his admitted lack of experience in this area. In an analogous case, the New Mexico Court of Appeals declined to apply that state's version of Rule 4.2 to a GAL's interviews with DCF social workers in a contested neglect matter. See State v. George F., 964 P.2d 158, 164 (N.M. 1998): "We hold that when a GAL . . . communicates with others involved in the case in order to assist the court, the GAL is not functioning in the traditional manner of an attorney representing a client and thus is not bound by Rule [4.2]."
Regardless of the claims made in the public defender's motion, the facts developed at the hearing are of concern to the court. The evidence shows the following:
1. The GAL was tentatively appointed at the initial plea on May 5, 2006, and the permanently appointed on May 10, 2006.CT Page 903
2. At the advisement of rights on May 5th, Judge Dyer stated: So you have two people in your corner. Okay. Your guardian ad litem and your lawyer. All right. If at any time you want to talk to either of them, just say hey, Judge, can I please have time out, I want to talk to my lawyer. And I'll give you every chance to talk to your lawyer and your GAL. (Emphasis added.)
3. For mother's benefit, as she had not been present on May 5th, on May 10, 2006, Judge Dyer also summarized the child's rights again, stating in part: "[H]e can have his lawyer with him while he is making statements or answering questions."
4. At a court proceeding on July 14, 2006, Judge Dyer appointed the GAL to represent the child both in the pending delinquency case and a recently filed child protection matter. The question arose as to whether the GAL had yet talked to the child. Judge Dyer inquired of the GAL: "Have you talked to [the child] yet?" The GAL replied: "No. I have not and I have an appointment today at 1, so I haven't talked with him." There is no indication in the record that the appointment referred to by the GAL actually took place.
The GAL had been appointed previously when on July 14th she also claimed to represent the child as attorney in the newly-filed neglect proceeding. Another attorney also claimed to be attorney for the child in the neglect proceeding. Judge Dyer resolved the matter by leaving the GAL in that capacity in both the neglect and delinquency cases; the public defender was to appear as the child's attorney in the delinquency and the second attorney as the child's attorney in the neglect proceeding. In the course of resolving appearances, Judge Dyer asked the GAL if she had at that time talked to the child.
5. After the hearing, the public defender and the child's attorney in the child protection matter jointly wrote to the GAL as follows: "It is our understanding that you will remain the Guardian ad litem for [the child]. Please be advised that you may not meet with our client unless we are present. We are sure that you understand the child's right to counsel and that you will honor this request." The public defender also stated to this court on December 5, 2006, that she never refused the GAL access to the child. "I said I had to be present."
This indicates to the Court that the issue here is not one of professional responsibility, but appropriate scheduling.
6. On August 9, 2006, the GAL left a telephone message for the public defender stating that she believed it her duty to interview the child and that she would not be bound by the directive of the public defender's July 14th letter.
7. On August 15 and October 10, 2006, the GAL interviewed the child, not in the presence of the public defender. The GAL testified that she warned the child that his response to the questions of the GAL were not confidential and were not covered by the attorney client privilege. The current criminal charges were not discussed between the child and the GAL. Issues of the child's current and future placement were discussed.
8. The GAL did not seek the court's advice on what terms her visit with the child might take place, that is whether she was required to be accompanied by the public defender during her interview of the child.
Under these facts, the court concludes that the GAL made an error in judgment in failing to discuss the interview schedule further with the public defender. If the parties were not able to resolve the issue, the GAL should have referred the matter to the court before visiting the child. "A guardian ad litem . . . is always subject to the supervision and control of the court, and he may act only in accordance with the instructions of the court." In re Tayquon H., supra at 708, n. 19.
The appropriate remedy under these circumstances is to replace the GAL. Analogously, under General Statutes § 45a-132(f), a GAL may be removed "whenever it appears to the judge . . . to be in the best interests" of the child. See Fish v. Fish, 90 Conn.App. 744 (2005).
The court therefore orders that the GAL in this matter be removed and replaced expeditiously with another attorney.
The GAL appointed in this matter shall investigate the child's past history, present status, and future potential, In re Isaiah B., Superior Court, Child Protection Session, Docket No. CP03-013615 (September 29, 2003, Rubinow, J.) [ 38 Conn. L. Rptr. 32]; shall have communication with the child in consultation with the public defender; disclose to the child the GAL's views on the child's best interest; take into account both the child's and the public defendant's responses thereto; discuss with both the prosecutor and public defender the GAL's view of the best interest of the child; advise the court of the GAL's views; and if necessary seek additional authority or responsibility from this court.
So ordered.