Opinion
Nos. T11-CP02-011439, T11-CP02-011440
April 19, 2006
MEMORANDUM OF DECISION
INTRODUCTION
The guardian ad litem appointed for the respondent mother (hereinafter sometimes referred to as the "adult ward") has requested that the court determine and set forth "the extent of her authority to make decisions on behalf of the mother concerning . . . issues in the upcoming trial." This request implicates not only the duties and the responsibilities of the guardian ad litem for the adult ward, but also the duties and responsibilities of the respondent mother's counsel to her.
The guardian ad litem filed a written request. She certified that copies were sent to counsel appearing in this case. Such counsel were contacted by the clerk's office to determine if they wished to submit any written position or to be heard before the court responded to the request. See In re William H., 88 Conn.App. 511, 522, 870 A.2d 1102 (2005).
APPLICABLE LAW:
"The duties of the guardian ad litem . . . are contextually specific to the case at hand, and the scope of those duties should be set by the trial court judge and communicated to the guardian ad litem. Because those duties may subsume those traditionally performed by counsel when counsel is the child's [or adult ward's] sole representative . . . counsel's duties must be similarly articulated by the court." In re Tayquon H., 76 Conn.App. 693, 708, 821 A.2d 796 (2003). A guardian ad litem is appointed and is granted by the court "limited powers to represent the interest of a child [or adult ward] in a particular court proceeding." Id., 708-09.
"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." Id., 708 n. 19. (Citation omitted.)
In In re Isaiah B., Superior Court, Judicial District of Middlesex (Rubinow, J., September 29, 2003) ( 38 Conn. L. Rptr. 32), Judge Rubinow had before her a motion by the department of children and families ("DCF") to set forth the duties and responsibilities of the guardian ad litem for a mother who, because of her level of intellectual functioning, had been found to be incompetent for purposes of trial. However, the mother was found to be able "to express fundamental desires." Id.
Judge Rubinow concluded that the "duties and responsibilities of an adult's GAL [in child protection litigation] are indistinguishable from the obligations borne by a child's GAL in civil cases." Id. As set forth in In re Tayquon H., "distinct, independent roles are played by the attorney and the independent GAL when a ward wishes an outcome for pending litigation that is inconsistent with her best interests." In re Isaiah B., supra. In part, this is because the ward's attorney has duties "`shaped by the Rules of Professional Conduct which, in pertinent part, obligate counsel to abide by a client's decisions concerning the objectives of representation. See Rules of Professional Conduct 1.2(a).' (Footnote omitted.) In Tayquon H., supra, 76 Conn.App. 703." Id.
Whether representing a child or an adult ward, ". . . the attorney should maintain, as closely as possible, a lawyer-client relationship that is as normal as possible. See Rules of Professional Conduct 1.14." In re Tayquon H., supra, 76 Conn.App. 707 n. 18. An attorney for a child or an adult ward should provide independent representation within the usual constraints applicable to such representation, Ireland v. Ireland, 246 Conn. 413, 438, 717 A.2d 676 (1998), ". . . limited to the type of representation enjoyed by unimpaired adults . . . arguing on behalf of his or her client, based on the evidence in the case and the applicable law . . . through such methods as written briefs, questioning of witnesses, oral arguments, and other proceedings that take place during the course of a trial." Id., 438-39.
In contrast, at trial the primary responsibility of a guardian ad litem is to set forth the facts concerning the adult ward and to articulate the best interest of the adult ward through evidence as a sworn witness, subject to cross examination, instead of though a written report. In re Tayquon H., supra, 76 Conn.App. 705, n. 15: "NCASAA includes among its recommendations that a guardian ad litem should submit written reports to the court. We find that suggestion troublesome, as we believe it more appropriate that a guardian ad litem testify as a witness, subject to cross-examination." See also In re Isaiah B., supra.
The guardian's view of the best interest of the adult ward should not be subsumed in issues usually considered by attorneys, such as statutory interpretation, so the guardian's view becomes based on what a statute may allow or require rather than on the ward's best interest. In re William H., supra, 88 Conn.App. 520-21.
In discussing the differences between counsel and a guardian ad litem for a minor child, the Appellate Court also set forth the following: ". . . the legal rights of a child often may be distinct from the child's best interest, and although there frequently may be overlap between the two, it is only because, in such cases, the rights of a child and the child's best interest coincide. While the best interest of a child encompasses a catholic concern with the child's human needs regarding his or her psychological, emotional and physical well-being, the representation of a child's legal interests requires vigilance over the child's legal rights. Those legal rights have been enumerated as the right to be a party to a legal proceeding, the right to be heard at that hearing and the right to be represented by a lawyer. When both a guardian ad litem and an attorney have been appointed for a child, their respective roles and the duties attendant to those roles should adhere to that basic distinction. Specifically, the guardian ad litem should refrain from acting as the second attorney for the child. Just as it is not normally the province of the attorney to testify, it is not the province of the guardian ad litem to file briefs with the court." In re Tayquon H., supra, 76 Conn.App. 707. (Footnotes omitted.)
Although the respondent mother has been determined to be incompetent in the context of the pending case, at this time the court will not require the guardian ad litem to make all decisions "relating to the presentation of the respondent mother's pending legal claims . . ."; nor at this time is the mother's attorney required to advocate the respondent mother's position based on the guardian's determination of the mother's best interest, instead of what the mother seeks. In re Isaiah B., supra; Schult v. Schult, 241 Conn. 767, 776-77, 780-81, 782-83, 699 A.2d 134 (1997).
As noted in Tayquon H., supra, 76 Conn.App. at 702, n. 9, "`. . . ordinarily the attorney should look to the guardian [to ascertain the best interest of the minor-ward];' (emphasis in original) Schult v. Schult, supra, 241 Conn. at 783, 699 A.2d 134; such action is not required in every case. The court further concluded that `[l]eaving the determination to the sound discretion of the trial court is particularly important in [these] difficult cases . . . The trial court is in the best position to evaluate the child's need for representation as the case and the evidence unfold.' Id., at 780-81, 699 A.2d 134."
However, this court has the discretion, in the circumstances of each case, to determine whether it is permissible for the adult ward's attorney to advocate a position contrary to that of the guardian ad litem. In re Isaiah B., supra; Schult v. Schult, supra, 241 Conn. 769. As a practical matter, this determination generally would be made after all evidence, including but not limited to the guardian ad litem's sworn testimony, including cross-examination, has been received by the court. In Isaiah B., Judge Rubinow, exercising her "fair discretion," found that: (1) the mother preferred the immediate return of her child who was currently in the care of DCF; (2) DCF vigorously contested that position; (3) DCF's (and presumably the guardian's) opposition, "in and of itself," did not mean that the mother's preferences were not "reasonable" or "strongly articulated" as described in Tayquon H., supra, 76 Conn.App. 707 n. 18.
Judge Rubinow considered RPC Rule 1.14's application to an attorney's role in the event of a client's incompetency. In re Isaiah B., supra. "Rule 1.14 specifically requires the attorney for an incompetent adult [a "client under a disability"] to `as far as possible, maintain a normal client-lawyer relationship with the client.' This rule does not preclude the attorney for an incompetent person from properly endeavoring to advise and assist the client in making decisions about important legal matters. Rather, by its terms, the rule requires the attorney for an incompetent individual to listen to his client, and to ascertain whether reasonable, or unreasonable, preferences are strongly and articulately expressed. In re Tayquon H., supra, 76 Conn.App. 707 n. 18. The rule further anticipates that the attorney for an incompetent person will advocate the client's desires or opinions concerning legal issues, such as whether she should regain custody of her child, and the rule also anticipates that the attorney will attempt to persuade the court that those desires are entitled to great weight." Id.
Judge Rubinow concluded: "Using its fair discretion, the court should hear both the position advocated on behalf of the respondent mother, and should also consider the position taken by [the respondent mother's] guardian ad litem, as such a protocol will aid in the achievement of the fair and impartial resolution which is called for . . ." In re Isaiah B., supra.
The commentary to Rule 1.14 contains the following: ". . . a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being . . . The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act as a de facto guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication."
In a recent case involving an adult ward who hired an attorney to appeal from a Probate Court decree awarding compensation to her conservator, the Supreme Court concluded "that a conserved person represented by an attorney may appeal from a Probate Court decree approving her conservator's compensation without a guardian ad litem or next friend, if the conserved person, through her attorney, persuades the trial court that it is in her best interests to do so. In reaching this conclusion, we are guided by the reasoning and factors that the Newman court [ Newman v. Newman, 235 Conn. 82, 101, 663 A.2d 980 (1995)] found persuasive in creating a similar exception in the context of minors because `the legal disability of an [adult incapable person] is analogous to that of a minor . . . In each case, the purpose of providing representation is to ensure that the legal disability imposed will not undermine adequate protection of [an incapable person's] interest.'" (Citations omitted.) Lesnewski v. Redvers, 276 Conn. 526, 537, 886 A.2d 1207 (2005). This decision recognizes that, in enumerated circumstances, so long as the attorney also can act as necessary as guardian ad litem or next friend, an incompetent or conserved adult can have a direct functioning attorney-client relationship without the intervention or appointment of a separate guardian ad litem or conservator to make decisions for or guide such person. Id., 538-40. The case by case approach is also approved in Rule 1.14 because: "Furthermore, to an increasing extent the law recognizes intermediate degrees of incompetence."
Thus, assuming in this case that there currently is a functioning attorney-client relationship between the attorney and the respondent mother, the guardian ad litem for such respondent mother should not act with respect to either person in any way that interferes with such relationship. However, if the attorney believes, at any time, that such attorney-client relationship is not working or able to continue, because of the disability of the client or otherwise, then the court can determine whether the role of the guardian concerning the attorney should be expanded in the best interests of the adult ward. See, e.g., a portion of the commentary to Rule 1.14 that may become applicable under those circumstances: "If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client."
In response to the guardian's request, and subject to further order(s) of the court as circumstances may require in the best interest of the adult ward, the court enters the following order:
ORDER SETTING FORTH THE DUTIES OF THE GUARDIAN AD LITEM IN THIS CASE
The guardian ad litem for the adult ward shall have the following powers and duties in this case concerning the upcoming trial:
1. The guardian ad litem independently shall investigate the adult ward's "past history, present status and future potential . . ." In re Isaiah B., supra, related to the issues to be determined at the upcoming trial.
2. The guardian ad litem shall have communication with, and obtain such information and documents, as the adult ward, in consultation with her attorney, is willing to provide; shall communicate with the adult ward such guardian's view of the adult ward's best interest; and shall give consideration to the adult ward's, and her attorney's, responses thereto.
3. The guardian ad litem shall communicate and discuss with counsel, including but not limited to the adult ward's counsel, such guardian's view of the adult ward's best interest.
4. If the guardian ad litem determines that it is appropriate or advisable under the circumstances, she may seek cooperative agreements and solutions to one or more issues, or to resolve the case, if, and as, such agreements and solutions are in the best interest of the of the adult ward, any such agreements and solutions, as necessary or required, being subject to prior court approval before becoming effective.
5. The guardian ad litem shall appear at trial to advise the court, through sworn testimony, subject to cross-examination, the guardian's view of the best interest of the adult ward.
6. In the exercise of the guardian's responsibilities, the guardian may seek additional authority or responsibility from this court.