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April, 2003 Volume LXXVII, No. 4
Guardians ad Litem: A Solution Without Strength in Helping Protect Dependent Children
by Michelle Johnson-Weider
Page 87
Simply put, a Guardian Ad Litem is a court-certified adult who has completed a mandatory training course to become an advocate for a child’s best interests . . . . Some Guardians Ad Litem are lawyers, but most are not. To qualify, one need only be a Florida resident of good repute and have an abiding interest in protecting at-risk children . . . Guardians Ad Litem, in a word, are more than a dependent child’s advocate in court. Ideally these guardians become the child’s friend, protector, mentor, trusted advisor.1
Since April 25, 2002, when Florida’s Department of Children and Family Services (DCF) divulged the 15-month absence of a foster child supposedly under its supervision,2 the question of how to protect vulnerable children in Florida’s dependency system has been at the forefront of state news and politics. On May 2, 2002, Governor Jeb Bush appointed a four-member blue ribbon panel to investigate the DCF scandal and make recommendations. In the panel’s final report, released on May 28, 2002, the panel put as its highest priority that a guardian ad litem (GAL) be appointed for every child in state supervision, stating, “If there is any program that costs the least and benefits the most, this is it.”3 State lawmakers obviously concurred, having increased the budget for Florida’s GAL program by $7.5 million.4 The same day the report was released, Governor Bush signed Executive Order 02-159, establishing the Guardian Ad Litem Program Working Group to “develop a recommended plan of action for realizing the full potential of the guardian ad litem program.”5
It appeared guardians were the answer to the DCF question, with one reporter even referring to guardians ad litem as “saviors.”6 The Guardian Ad Litem Program Working Group’s final report reiterated the importance of the GAL as someone “[who] protects the child during the family crisis, court proceedings, and follows the child’s progress after the court disposes of the case.”7 In the words of Governor Bush, guardians “not only represent these children in the courts, but also watch over them as they make the transition to a new home.”8
What the panel members, politicians, and newspaper writers aren’t aware of is that typically a GAL is discharged from a case once the court enters its final order;9 the GAL is not permitted to have any contact with the child after that point;10 and a GAL is never authorized to supervise visitation with a child11 or to assume any physical responsibility for a child.12
Statutory Strength
In proceedings involving children, GALs have considerable powers under Florida law and numerous statutes provide for the use of guardians ad litem to assist the trier of fact in protecting children. The most detailed, however, is F.S. §61.403, which establishes the “powers and authority” of the guardian ad litem, including the power to investigate allegations, interview anyone with information “concerning the welfare of the child,” inspect pertinent records, request and obtain expert examinations, address the court, make written or oral recommendations to the court, participate in all proceedings involving the child, and submit written reports. The statute states a guardian ad litem “shall act as next friend of the child, investigator or evaluator, not as attorney or advocate but shall act in the child’s best interests. A guardian ad litem shall have the powers, privileges, and responsibilities to the extent necessary to advance the best interests of the child.”
The plain language of the statute appears to lend authority to the GAL, to give guardians a definite ability to act in the best interests of the child. Guardians stand uniquely positioned to see what harried DCF workers or client-focused parental attorneys often cannot: There is a child involved in this proceeding, and what is best for the parents or the system may not be best for the child. A guardian ad litem is positioned to ensure the child’s needs are being met within the trauma of dependency or divorce proceedings.13
Numerous statutes call upon GALs in various proceedings from dependency to divorce to help protect children. If allowed to use the powers authorized by statute, a guardian ad litem can prove a significant participant in serving a child’s best interest throughout the legal process. Exercising these powers is often limited in formal proceedings, such as at a final hearing on the termination of parental rights.14
By statute, a GAL is required to prepare a written report that includes recommendations to the court. GAL program guidelines denote the written report as the true culmination of all of the guardian’s work on the case. The GAL report is statutorily mandated under F.S. §61.403 and can be a valuable tool in understanding family dynamics as it chronicles the GAL’s investigation and also usually includes a statement of the child’s wishes—even if different from the guardian’s recommendations. The report must be turned in to the GAL program office at least one week prior to hearing, and program staff review the report to make sure that it conforms to the program’s guidelines and relevant law before providing copies to all parties 72 hours before the hearing, when it is filed with the court.15
The GAL also receives training and preparation for court, where the guardian is usually called to testify and give recommendations. In training, guardians are advised the court expects them to provide an “honest and sincere evaluation of the situation” based on the facts the GAL has personally observed through investigation, and to conclude with “objective recommendations as to alternatives available to the court to serve the best interests of the child.” The GAL is typically told nothing about hearsay or its exceptions under the rules of evidence, but is reassured “[y]ou have conducted a thorough review of the facts, you have written a sound report, you have prepared yourself well, you have nothing to fear from any court appearance.”16 GALs are trained to feel that they are fulfilling a statutory duty when they prepare reports and testify in court. Unfortunately, this type of training leaves many guardians unprepared for what can happen at the actual hearing.
Practical Weaknesses
Despite all of the well-intended powers enacted for the guardians ad litem, the lack of a statutory hearsay exception has a stifling effect on their ability to protect Florida’s children at the most critical stage of the process—in court.
F.S. §61.20 allows the court in child custody actions to “order a social investigation and study concerning all pertinent details relating to the child and each parent.” The statute requires the study result in a written report with recommendations. The statute also provides “[t]he court may consider the information contained in the study in making a decision on the child’s custody and the technical rules of evidence do not exclude the study from consideration.” The constitutionality of §61.20 was upheld in Kern v. Kern, 333 So. 2d 17 (Fla. 1976). The Florida Supreme Court noted the section was a constitutional legislative acknowledgment that trial courts benefit from being able to consider “potentially valuable information compiled by professional social workers.” Kern suggests so long as the reports are made available to the parties far enough in advance that they have the opportunity to review the reports and call witnesses to corroborate or discredit them, due process is met.
F.S. §61.20, as upheld by Kern, was for a time a source of hope for GALs, as some believed that GAL reports fell within §61.20’s social investigation reports.17 After all, the court had quoted with approval the following:
In general, it may be argued that the report itself is admissible under well-recognized exceptions to the hearsay rule. In fact, it may be doubted whether the report is within the hearsay ban at all. The dangers of faulty perception and narration seem alleviated by the social workers’ special skills and training; falsification seems unlikely; and memory is unimportant if the report is more or less contemporaneous.18
Because GALs receive special training to conduct their statutorily mandated investigations and prepare their reports, and are available in court to testify to their investigative techniques, it seemed that GALs should fall within the hearsay exception.19 However, §61.20 contains the following crucial sentence: The study must be conducted by “qualified staff of the court; a [licensed] child-placing agency . . . ; a [licensed] psychologist . . . ; or a clinical social worker, marriage and family therapist, or [licensed] mental health counselor. . . .” Because neither this statute nor any other Florida law provides specifically that GALs come within this exception, hearsay objections to GAL testimony must be sustained. Scaringe v. Herrick, 711 So. 2d 204, 205 (Fla. 2d DCA 1998). Moreover, the GAL report can be also excluded from being considered in evidence for the same reason. It can be shocking or unnerving for a guardian to discover for the first time in court that his or her testimony can be blocked by hearsay objections or that the GAL’s report serves more as a convenient reference for the parties’ attorneys than as evidence for the judge to consider. It is little wonder that some guardians are left feeling like the entire investigative and reporting process is a futile endeavor.
The district courts have also upheld the exclusion of hearsay evidence in regard to the GAL’s report and investigation testimony. The Scaringe case involved a father’s appeal of a final order granting sole parental responsibility to the mother. The appellate court affirmed the order, but went to special lengths to examine the role that the GAL played at the hearing. Although the court did not find the GAL’s actions “fundamentally unfair,” it was very concerned about the admission of hearsay through the GAL’s report and testimony. The court noted that while the GAL must file a written report under §61.403, hearsay rules could still prevent the report from being entered into evidence. The Scaringe court advised, “When a guardian attempts to testify to hearsay statements and a valid hearsay objection is raised, that objection should be sustained.” Moreover, the court clearly established its opinion that §61.20’s exception for social investigation reports does not apply to a “typical” guardian ad litem. Presumably, the court meant a GAL without the special training of a professional social worker. Judge Blue specially concurred to observe that, although “[g]uardians ad litem render an invaluable service to the children and courts of this state . . . trial judges must remain vigilant that they not abdicate their fact-finding and decisional responsibilities to a guardian ad litem assigned to report on the best interest of a child or children.”
In Luszczyk v. HRS, 576 So. 2d 431 (Fla. 5th DCA 1991), the Fifth District held that before a trial court can allow a GAL to report a child’s out-of-court statements, it must hold a hearing to determine the trustworthiness of the hearsay. The GAL may not simply testify as to personal belief in the truthfulness of the child’s testimony. One of the GAL’s responsibilities is to present the child’s wishes to the court, even if those wishes differ from what the GAL believes is in the best interests of the child.20 If the child’s wishes are inadmissible hearsay, it makes it difficult for the GAL to complete this significant statutory task which is important for the court’s consideration.21
For example, a child may have told his GAL that he does not want to live with his mother because she says nasty things when she is drinking. The mother’s attorney will probably object to the introduction of this out-of-court statement on the grounds that it is hearsay and unfairly prejudicial to the mother. If the GAL tries to assert an opinion that the child would rather live with the father, the mother’s attorney will object on the grounds that the GAL is not an expert witness and as a lay person is only allowed to state an opinion based on personal knowledge. At this point the judge may simply decide that only by interviewing the child personally can he or she consider the child’s wishes in making a decision.22 This makes the GAL’s work duplicative at best.
Second District cases after Scaringe have continued to express that court’s wariness regarding GALs. In Roski v. Roski, 730 So. 2d 413 (Fla. 2d DCA 1999), the court considered a custody battle arising out of a dissolution of marriage proceeding. As part of his appeal, the father claimed that the GAL had so favored the mother as to deny him a fair trial. The court disagreed, but cited Scaringe to “[caution] trial judges against abdicating their decision-making responsibility to a guardian ad litem.” The court went on to “repeat the warning that, pursuant to §61.403, guardians shall not act as advocates . . . [and] . . . strongly encourage trial judges to jealously guard the court’s authority in such matters.”23
The Second District’s opinion of “typical” GALs was perhaps best expressed in a case that did not concern children or dependency, but rather an adult woman in a permanent vegetative state and on life support. In affirming the trial judge’s decision not to appoint a GAL for the woman, the court stressed that “a guardian ad litem would tend to duplicate the function of the judge, would add little of value to the process, and might cause the process to be influenced by hearsay or matters outside the record.” In Re: Guardianship of: Schiavo, 780 So. 2d 176, 177 (Fla. 2d DCA 2001). The court seems to feel that many GALs are simply not qualified to provide valuable assistance to judges, despite the legislature’s apparent confidence in GALs and the extensive training that GALs receive.
The Third District followed the logic of Scaringe in C.J. v. DCF, 756 So. 2d 1108 (Fla. 3d DCA 2000), when it decided that the trial court should not have made findings based on a GAL report because it contained hearsay. Nevertheless, the court found that the error was harmless as the report was cumulative of other admissible evidence. Unfortunately, a ruling that a GAL report is “harmless” but “cumulative” is almost as detrimental to GAL authority as a finding that the report is inadmissible hearsay; in either case, a trial judge who wants to avoid reversal on appeal is likely to make sure not to rely on GAL testimony or recommendations.24
The Third District has also expressed reservations about the role of GALs in the judicial process. Judge Schwartz alluded to one reason that judges might have doubts about GALs when he praised the GAL in the case as one who “truly—and uniquely in my appellate experience—actually represented the interests of her ward, rather than acting as an adjunct of the Department of Children and Families.” S.D. v. DCF, 805 So. 2d 10, 15 n.3 (Fla. 3d DCA 2001) (Schwartz dissenting).
The State of Florida established the GAL program in order to receive federal funding under the Child Abuse Prevention and Treatment Act of 1974. The legislature subsequently enacted many statutes to give certified citizen GAL volunteers rights and responsibilities to represent the best interests of children. However, the program has been unable to safeguard those rights in the courts, in part due to its failure to represent the children in all of the cases to which it is appointed and in part because many judges are not convinced that GALs are sufficiently trained or experienced to assist the judicial process. Although the public has hailed GALs as protectors of vulnerable children, many judges remain uncomfortable with this “new” third party in their courtrooms. Because often a child can act only through a guardian ad litem, a limitation on the rights of a guardian is a limitation on the rights of a child.25
It is evident the appellate courts are frustrated with the legislature’s failure to adequately support the GAL program even though such appointment is clearly required by statute.26 In In Re: E.F., 639 So. 2d 639 (Fla. 2d DCA 1994), the Second District noted the “moral responsibility” to support the statute mandating the appointment of guardians in termination of parental rights cases; however, the court refused to find fundamental error when the trial court attempted to appoint a GAL in a termination of parental rights case but was unsuccessful due to lack of a volunteer.27 The court justified its holding on the traditional “duty of the court to protect the best interests of children involved in all types of litigation” and the fact that GALs are a “relatively new addition to proceedings involving children.” In effect, the court found that the legislature’s failure to supply enough GALs overshadowed its statutory directive requiring courts to appoint GALs. The court decided that it did not want children sitting in limbo until a volunteer could be found when the courts themselves had for many years operated quite well without GALs. The court also noted that children involved in dependency proceedings, unlike their parents, do not have a constitutional right to legal representation, partly because children are statutorily guaranteed a GAL to represent their best interests. The court acknowledged that this result was “troubling” because children could end up with “neither legal representation nor a guardian in a proceeding designed to permanently sever their ties to their natural parents.”
The Fifth District at least has clarified the “no fundamental error” doctrine to ensure that trial courts do not completely ignore the statutes requiring GAL appointment. In Vestal v. Vestal, 731 So. 2d 828 (Fla. 5th DCA 1999), the appellate court found reversible error when the trial court had never even attempted to appoint a GAL, even though the issue was not raised until appeal. In distinguishing the “no fundamental error” cases, the court noted that there was so little evidence and testimony in this case that the child’s interests were not adequately represented.28 The court did not address how long the trial court had to wait if a GAL was not available for appointment or what other measures the court should take on remand to protect the child’s interests.
Reform Needed
Given the appellate trends, many Florida judges are unwilling to construe GAL authority broadly and instead strictly construe statutes such as §61.20 even when such construction undermines legislative intent. Of course, the Florida Legislature has also been inconsistent by mandating the appointment of GALs while traditionally providing insufficient financial support to the GAL program. While all branches of Florida’s government seem to recognize that GALs theoretically are an excellent idea, each branch has had hesitations or unrealistic expectations about the program that only limit its effectiveness.
If the goal of increasing the number of GALs is to provide children with someone to look out for their best interests, then GALs must continue to be trained and funded. If the point of having GALs write a detailed report of their investigations and recommendations is to provide judges with objective information, then GALs must have the same standing as social workers before the court and their testimony and reports must be allowed into evidence. Extending the §61.20 hearsay exception to GALs does not mean that judges “abdicate their fact-finding and decisional responsibilities”; it only means that GALs can actually present information from their statutorily mandated investigation, instead of merely engaging in what might otherwise be an exercise in futility. By extending the §61.20 hearsay exception to GALs, the legislature can ensure that GALs are not silenced in the very proceedings in which children most need them to be able to speak. By pursuing these actions, perhaps the governor can ensure the GAL program is truly the solution he intends it to be.
1 Governor’s Blue Ribbon Panel on Child Protection, Blue Ribbon Panel Report, available at www.myflorida.com/myflorida/government/otherinfo/blueribbon (released May 28, 2002). Guardians ad litem in Florida must be at least 19 years old, have two letters of reference, pass a background check and two screening interviews, and complete 30 hours of initial training; there is also an annual six-hour continuing education requirement. Office of the State Courts Administrator, Dependency Volunteer Training Manual, Florida Guardian ad Litem Program, Introduction and Overview, **3–4.
2 Five-year-old Rilya Wilson’s DCF caseworker falsified visitation records to circumvent the requirement that she visit her assigned children every 30 days. Governor’s Blue Ribbon Panel on Child Protection, supra note 1.
3 Id.
4 David Royse, State budget will privatize government personnel work, Assoc. Press Newswire (May 10, 2002).
5 Fla. Exec. Order 02-159 is available at www.myflorida.com/myflorida/government/otherinfo/documents/eo02-159.doc.
6 Fran Hathaway, Opinion, Some Children Do Have Saviors, Palm Beach Post, June 9, 2002.
7 Guardian Ad Litem Working Group, Final Report of the Guardian Ad Litem Working Group, *4, available at www.myflorida.com/myflorida/government/taskandcommissions/index (Sept. 15, 2002).
8 Governor Jeb Bush, quoted in Royse, supra note 4.
9 Fla. R. Juv. P. §8.215(c)(3) (2002); H. Lila Hubert, Comment, In the Child’s Best Interests: The Role of the Guardian ad Litem in Termination of Parental Rights Proceedings, 49 U. Miami L. Rev. 531, 566 n.48 (Winter 1994), citing Fla. Stat. §39.465(2)(b)(3) (1993).
10 Guidelines for Guardian Ad Litem Volunteers, Sixth Judicial Circuit, #8.
11 Id. at #11.
12 Dependency Volunteer Training Manual, supra note 1, at Roles and Responsibilities of the Guardian ad Litem, *38.
13 Renee Goldenberg and Nancy S. Palmer, Guardian ad Litem Programs: Where They Have Gone and Where They Are Going, 69 Fla. B.J. 83, 84 (Dec. 1995).
14 For a detailed discussion of termination of parental rights and a GAL’s ability to independently pursue such proceedings, see Hubert, supra note 9. Under Fla. Stat. §39.807(2)(a) (2002), a GAL must be appointed in every termination of parental rights proceeding.
15 Dependency Volunteer Training Manual, supra note 1, at Writing Reports, *9.
16 Id.
17 Goldenberg and Palmer, supra note 13, at 88. This article was written before Scaringe v. Herrick, 711 So. 2d 204 (Fla. 2d D.C.A. 1998).
18 Id., quoting Comment, Use of Extra-Record Information in Custody Cases, 24 U. Chi. L. Rev. 349, 357 (1957).
19 Id.; Goldenberg and Palmer, supra note 13, at 88.
20 Fla. R. Juv. P. §8.215 (2002).
21 Of course, the parties can always agree by stipulation to allow the report into evidence. E.g., Blosser v. Blosser, 707 So. 2d 778, 780 (Fla. 2d D.C.A. 1998) (dissolution of marriage case). However, this is much less likely to happen in a dependency case, especially where the report clearly disfavors one side.
22 See Perez v. Perez, 767 So. 2d 513, 515 (Fla. 3d D.C.A. 2000) (observing that the trial court obtained the parent’s permission to interview the children in camera after the trial court decided that under Scaringe the GAL’s testimony and report contained inadmissible hearsay).
23 It is interesting to note that Judge Blue, who specially concurred in Scaringe to voice his hesitations about GALs, also wrote the Roski decision. Judge Blue was elected as chief judge of the Second District in May 2001 and will serve in that capacity until June 30, 2003. Second District Court of Appeals Web site, available at www.2dca.org/judges/blue.
24 See L.D. v. DCF, 770 So. 2d 219, 220 (Fla. 3d D.C.A. 2000) (observing that the trial judge’s opinion included a disclaimer that the court’s decision would have been the same even without the GAL’s testimony).
25 Hubert, supra note 9, at 565.
26 Michael J. Dale, Providing Counsel to Children in Dependency Proceedings in Florida, 25 Nova L. Rev. 769, 777 and 791 (Spring 2001); Fla. Stat. §§39.807(2)(a) (2002), 61.401.
27 E.F., 639 So. 2d at 640; adopted by the Fifth District in Fisher v. HRS, 674 So. 2d 208, 208 (Fla. 5th D.C.A. 1996); cited with approval by the Third District in L.D. v. DCF, 770 So. 2d 219, 220 (Fla. 3d D.C.A. 2000).
28 Vestal, 731 So. 2d at 829 (Fla. 5th D.C.A. 1999) (distinguishing In re E.F. and Fisher v. HRS).
Michelle Johnson-Weider will graduate in May from Stetson University College of Law. As a volunteer guardian ad litem in the Sixth Judicial Circuit from February 2001 to May 2002, she prepared a report for and testified in one termination of parental rights trial. Upon graduation, she will work in Washington, D.C., as a staff attorney for the U.S. Senate Office of the Legislative Counsel.
This column is submitted onb ehalf of the Family Law Section, Caroline Black, chair, and Rana Holz, editor.
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April, 2003 Volume LXXVII, No. 4
Guardians ad Litem: A Solution Without Strength in Helping Protect Dependent Children
by Michelle Johnson-Weider
Page 87
Simply put, a Guardian Ad Litem is a court-certified adult who has completed a mandatory training course to become an advocate for a child’s best interests . . . . Some Guardians Ad Litem are lawyers, but most are not. To qualify, one need only be a Florida resident of good repute and have an abiding interest in protecting at-risk children . . . Guardians Ad Litem, in a word, are more than a dependent child’s advocate in court. Ideally these guardians become the child’s friend, protector, mentor, trusted advisor.1
Since April 25, 2002, when Florida’s Department of Children and Family Services (DCF) divulged the 15-month absence of a foster child supposedly under its supervision,2 the question of how to protect vulnerable children in Florida’s dependency system has been at the forefront of state news and politics. On May 2, 2002, Governor Jeb Bush appointed a four-member blue ribbon panel to investigate the DCF scandal and make recommendations. In the panel’s final report, released on May 28, 2002, the panel put as its highest priority that a guardian ad litem (GAL) be appointed for every child in state supervision, stating, “If there is any program that costs the least and benefits the most, this is it.”3 State lawmakers obviously concurred, having increased the budget for Florida’s GAL program by $7.5 million.4 The same day the report was released, Governor Bush signed Executive Order 02-159, establishing the Guardian Ad Litem Program Working Group to “develop a recommended plan of action for realizing the full potential of the guardian ad litem program.”5
It appeared guardians were the answer to the DCF question, with one reporter even referring to guardians ad litem as “saviors.”6 The Guardian Ad Litem Program Working Group’s final report reiterated the importance of the GAL as someone “[who] protects the child during the family crisis, court proceedings, and follows the child’s progress after the court disposes of the case.”7 In the words of Governor Bush, guardians “not only represent these children in the courts, but also watch over them as they make the transition to a new home.”8
What the panel members, politicians, and newspaper writers aren’t aware of is that typically a GAL is discharged from a case once the court enters its final order;9 the GAL is not permitted to have any contact with the child after that point;10 and a GAL is never authorized to supervise visitation with a child11 or to assume any physical responsibility for a child.12
Statutory Strength
In proceedings involving children, GALs have considerable powers under Florida law and numerous statutes provide for the use of guardians ad litem to assist the trier of fact in protecting children. The most detailed, however, is F.S. §61.403, which establishes the “powers and authority” of the guardian ad litem, including the power to investigate allegations, interview anyone with information “concerning the welfare of the child,” inspect pertinent records, request and obtain expert examinations, address the court, make written or oral recommendations to the court, participate in all proceedings involving the child, and submit written reports. The statute states a guardian ad litem “shall act as next friend of the child, investigator or evaluator, not as attorney or advocate but shall act in the child’s best interests. A guardian ad litem shall have the powers, privileges, and responsibilities to the extent necessary to advance the best interests of the child.”
The plain language of the statute appears to lend authority to the GAL, to give guardians a definite ability to act in the best interests of the child. Guardians stand uniquely positioned to see what harried DCF workers or client-focused parental attorneys often cannot: There is a child involved in this proceeding, and what is best for the parents or the system may not be best for the child. A guardian ad litem is positioned to ensure the child’s needs are being met within the trauma of dependency or divorce proceedings.13
Numerous statutes call upon GALs in various proceedings from dependency to divorce to help protect children. If allowed to use the powers authorized by statute, a guardian ad litem can prove a significant participant in serving a child’s best interest throughout the legal process. Exercising these powers is often limited in formal proceedings, such as at a final hearing on the termination of parental rights.14
By statute, a GAL is required to prepare a written report that includes recommendations to the court. GAL program guidelines denote the written report as the true culmination of all of the guardian’s work on the case. The GAL report is statutorily mandated under F.S. §61.403 and can be a valuable tool in understanding family dynamics as it chronicles the GAL’s investigation and also usually includes a statement of the child’s wishes—even if different from the guardian’s recommendations. The report must be turned in to the GAL program office at least one week prior to hearing, and program staff review the report to make sure that it conforms to the program’s guidelines and relevant law before providing copies to all parties 72 hours before the hearing, when it is filed with the court.15
The GAL also receives training and preparation for court, where the guardian is usually called to testify and give recommendations. In training, guardians are advised the court expects them to provide an “honest and sincere evaluation of the situation” based on the facts the GAL has personally observed through investigation, and to conclude with “objective recommendations as to alternatives available to the court to serve the best interests of the child.” The GAL is typically told nothing about hearsay or its exceptions under the rules of evidence, but is reassured “[y]ou have conducted a thorough review of the facts, you have written a sound report, you have prepared yourself well, you have nothing to fear from any court appearance.”16 GALs are trained to feel that they are fulfilling a statutory duty when they prepare reports and testify in court. Unfortunately, this type of training leaves many guardians unprepared for what can happen at the actual hearing.
Practical Weaknesses
Despite all of the well-intended powers enacted for the guardians ad litem, the lack of a statutory hearsay exception has a stifling effect on their ability to protect Florida’s children at the most critical stage of the process—in court.
F.S. §61.20 allows the court in child custody actions to “order a social investigation and study concerning all pertinent details relating to the child and each parent.” The statute requires the study result in a written report with recommendations. The statute also provides “[t]he court may consider the information contained in the study in making a decision on the child’s custody and the technical rules of evidence do not exclude the study from consideration.” The constitutionality of §61.20 was upheld in Kern v. Kern, 333 So. 2d 17 (Fla. 1976). The Florida Supreme Court noted the section was a constitutional legislative acknowledgment that trial courts benefit from being able to consider “potentially valuable information compiled by professional social workers.” Kern suggests so long as the reports are made available to the parties far enough in advance that they have the opportunity to review the reports and call witnesses to corroborate or discredit them, due process is met.
F.S. §61.20, as upheld by Kern, was for a time a source of hope for GALs, as some believed that GAL reports fell within §61.20’s social investigation reports.17 After all, the court had quoted with approval the following:
In general, it may be argued that the report itself is admissible under well-recognized exceptions to the hearsay rule. In fact, it may be doubted whether the report is within the hearsay ban at all. The dangers of faulty perception and narration seem alleviated by the social workers’ special skills and training; falsification seems unlikely; and memory is unimportant if the report is more or less contemporaneous.18
Because GALs receive special training to conduct their statutorily mandated investigations and prepare their reports, and are available in court to testify to their investigative techniques, it seemed that GALs should fall within the hearsay exception.19 However, §61.20 contains the following crucial sentence: The study must be conducted by “qualified staff of the court; a [licensed] child-placing agency . . . ; a [licensed] psychologist . . . ; or a clinical social worker, marriage and family therapist, or [licensed] mental health counselor. . . .” Because neither this statute nor any other Florida law provides specifically that GALs come within this exception, hearsay objections to GAL testimony must be sustained. Scaringe v. Herrick, 711 So. 2d 204, 205 (Fla. 2d DCA 1998). Moreover, the GAL report can be also excluded from being considered in evidence for the same reason. It can be shocking or unnerving for a guardian to discover for the first time in court that his or her testimony can be blocked by hearsay objections or that the GAL’s report serves more as a convenient reference for the parties’ attorneys than as evidence for the judge to consider. It is little wonder that some guardians are left feeling like the entire investigative and reporting process is a futile endeavor.
The district courts have also upheld the exclusion of hearsay evidence in regard to the GAL’s report and investigation testimony. The Scaringe case involved a father’s appeal of a final order granting sole parental responsibility to the mother. The appellate court affirmed the order, but went to special lengths to examine the role that the GAL played at the hearing. Although the court did not find the GAL’s actions “fundamentally unfair,” it was very concerned about the admission of hearsay through the GAL’s report and testimony. The court noted that while the GAL must file a written report under §61.403, hearsay rules could still prevent the report from being entered into evidence. The Scaringe court advised, “When a guardian attempts to testify to hearsay statements and a valid hearsay objection is raised, that objection should be sustained.” Moreover, the court clearly established its opinion that §61.20’s exception for social investigation reports does not apply to a “typical” guardian ad litem. Presumably, the court meant a GAL without the special training of a professional social worker. Judge Blue specially concurred to observe that, although “[g]uardians ad litem render an invaluable service to the children and courts of this state . . . trial judges must remain vigilant that they not abdicate their fact-finding and decisional responsibilities to a guardian ad litem assigned to report on the best interest of a child or children.”
In Luszczyk v. HRS, 576 So. 2d 431 (Fla. 5th DCA 1991), the Fifth District held that before a trial court can allow a GAL to report a child’s out-of-court statements, it must hold a hearing to determine the trustworthiness of the hearsay. The GAL may not simply testify as to personal belief in the truthfulness of the child’s testimony. One of the GAL’s responsibilities is to present the child’s wishes to the court, even if those wishes differ from what the GAL believes is in the best interests of the child.20 If the child’s wishes are inadmissible hearsay, it makes it difficult for the GAL to complete this significant statutory task which is important for the court’s consideration.21
For example, a child may have told his GAL that he does not want to live with his mother because she says nasty things when she is drinking. The mother’s attorney will probably object to the introduction of this out-of-court statement on the grounds that it is hearsay and unfairly prejudicial to the mother. If the GAL tries to assert an opinion that the child would rather live with the father, the mother’s attorney will object on the grounds that the GAL is not an expert witness and as a lay person is only allowed to state an opinion based on personal knowledge. At this point the judge may simply decide that only by interviewing the child personally can he or she consider the child’s wishes in making a decision.22 This makes the GAL’s work duplicative at best.
Second District cases after Scaringe have continued to express that court’s wariness regarding GALs. In Roski v. Roski, 730 So. 2d 413 (Fla. 2d DCA 1999), the court considered a custody battle arising out of a dissolution of marriage proceeding. As part of his appeal, the father claimed that the GAL had so favored the mother as to deny him a fair trial. The court disagreed, but cited Scaringe to “[caution] trial judges against abdicating their decision-making responsibility to a guardian ad litem.” The court went on to “repeat the warning that, pursuant to §61.403, guardians shall not act as advocates . . . [and] . . . strongly encourage trial judges to jealously guard the court’s authority in such matters.”23
The Second District’s opinion of “typical” GALs was perhaps best expressed in a case that did not concern children or dependency, but rather an adult woman in a permanent vegetative state and on life support. In affirming the trial judge’s decision not to appoint a GAL for the woman, the court stressed that “a guardian ad litem would tend to duplicate the function of the judge, would add little of value to the process, and might cause the process to be influenced by hearsay or matters outside the record.” In Re: Guardianship of: Schiavo, 780 So. 2d 176, 177 (Fla. 2d DCA 2001). The court seems to feel that many GALs are simply not qualified to provide valuable assistance to judges, despite the legislature’s apparent confidence in GALs and the extensive training that GALs receive.
The Third District followed the logic of Scaringe in C.J. v. DCF, 756 So. 2d 1108 (Fla. 3d DCA 2000), when it decided that the trial court should not have made findings based on a GAL report because it contained hearsay. Nevertheless, the court found that the error was harmless as the report was cumulative of other admissible evidence. Unfortunately, a ruling that a GAL report is “harmless” but “cumulative” is almost as detrimental to GAL authority as a finding that the report is inadmissible hearsay; in either case, a trial judge who wants to avoid reversal on appeal is likely to make sure not to rely on GAL testimony or recommendations.24
The Third District has also expressed reservations about the role of GALs in the judicial process. Judge Schwartz alluded to one reason that judges might have doubts about GALs when he praised the GAL in the case as one who “truly—and uniquely in my appellate experience—actually represented the interests of her ward, rather than acting as an adjunct of the Department of Children and Families.” S.D. v. DCF, 805 So. 2d 10, 15 n.3 (Fla. 3d DCA 2001) (Schwartz dissenting).
The State of Florida established the GAL program in order to receive federal funding under the Child Abuse Prevention and Treatment Act of 1974. The legislature subsequently enacted many statutes to give certified citizen GAL volunteers rights and responsibilities to represent the best interests of children. However, the program has been unable to safeguard those rights in the courts, in part due to its failure to represent the children in all of the cases to which it is appointed and in part because many judges are not convinced that GALs are sufficiently trained or experienced to assist the judicial process. Although the public has hailed GALs as protectors of vulnerable children, many judges remain uncomfortable with this “new” third party in their courtrooms. Because often a child can act only through a guardian ad litem, a limitation on the rights of a guardian is a limitation on the rights of a child.25
It is evident the appellate courts are frustrated with the legislature’s failure to adequately support the GAL program even though such appointment is clearly required by statute.26 In In Re: E.F., 639 So. 2d 639 (Fla. 2d DCA 1994), the Second District noted the “moral responsibility” to support the statute mandating the appointment of guardians in termination of parental rights cases; however, the court refused to find fundamental error when the trial court attempted to appoint a GAL in a termination of parental rights case but was unsuccessful due to lack of a volunteer.27 The court justified its holding on the traditional “duty of the court to protect the best interests of children involved in all types of litigation” and the fact that GALs are a “relatively new addition to proceedings involving children.” In effect, the court found that the legislature’s failure to supply enough GALs overshadowed its statutory directive requiring courts to appoint GALs. The court decided that it did not want children sitting in limbo until a volunteer could be found when the courts themselves had for many years operated quite well without GALs. The court also noted that children involved in dependency proceedings, unlike their parents, do not have a constitutional right to legal representation, partly because children are statutorily guaranteed a GAL to represent their best interests. The court acknowledged that this result was “troubling” because children could end up with “neither legal representation nor a guardian in a proceeding designed to permanently sever their ties to their natural parents.”
The Fifth District at least has clarified the “no fundamental error” doctrine to ensure that trial courts do not completely ignore the statutes requiring GAL appointment. In Vestal v. Vestal, 731 So. 2d 828 (Fla. 5th DCA 1999), the appellate court found reversible error when the trial court had never even attempted to appoint a GAL, even though the issue was not raised until appeal. In distinguishing the “no fundamental error” cases, the court noted that there was so little evidence and testimony in this case that the child’s interests were not adequately represented.28 The court did not address how long the trial court had to wait if a GAL was not available for appointment or what other measures the court should take on remand to protect the child’s interests.
Reform Needed
Given the appellate trends, many Florida judges are unwilling to construe GAL authority broadly and instead strictly construe statutes such as §61.20 even when such construction undermines legislative intent. Of course, the Florida Legislature has also been inconsistent by mandating the appointment of GALs while traditionally providing insufficient financial support to the GAL program. While all branches of Florida’s government seem to recognize that GALs theoretically are an excellent idea, each branch has had hesitations or unrealistic expectations about the program that only limit its effectiveness.
If the goal of increasing the number of GALs is to provide children with someone to look out for their best interests, then GALs must continue to be trained and funded. If the point of having GALs write a detailed report of their investigations and recommendations is to provide judges with objective information, then GALs must have the same standing as social workers before the court and their testimony and reports must be allowed into evidence. Extending the §61.20 hearsay exception to GALs does not mean that judges “abdicate their fact-finding and decisional responsibilities”; it only means that GALs can actually present information from their statutorily mandated investigation, instead of merely engaging in what might otherwise be an exercise in futility. By extending the §61.20 hearsay exception to GALs, the legislature can ensure that GALs are not silenced in the very proceedings in which children most need them to be able to speak. By pursuing these actions, perhaps the governor can ensure the GAL program is truly the solution he intends it to be.
1 Governor’s Blue Ribbon Panel on Child Protection, Blue Ribbon Panel Report, available at www.myflorida.com/myflorida/government/otherinfo/blueribbon (released May 28, 2002). Guardians ad litem in Florida must be at least 19 years old, have two letters of reference, pass a background check and two screening interviews, and complete 30 hours of initial training; there is also an annual six-hour continuing education requirement. Office of the State Courts Administrator, Dependency Volunteer Training Manual, Florida Guardian ad Litem Program, Introduction and Overview, **3–4.
2 Five-year-old Rilya Wilson’s DCF caseworker falsified visitation records to circumvent the requirement that she visit her assigned children every 30 days. Governor’s Blue Ribbon Panel on Child Protection, supra note 1.
3 Id.
4 David Royse, State budget will privatize government personnel work, Assoc. Press Newswire (May 10, 2002).
5 Fla. Exec. Order 02-159 is available at www.myflorida.com/myflorida/government/otherinfo/documents/eo02-159.doc.
6 Fran Hathaway, Opinion, Some Children Do Have Saviors, Palm Beach Post, June 9, 2002.
7 Guardian Ad Litem Working Group, Final Report of the Guardian Ad Litem Working Group, *4, available at www.myflorida.com/myflorida/government/taskandcommissions/index (Sept. 15, 2002).
8 Governor Jeb Bush, quoted in Royse, supra note 4.
9 Fla. R. Juv. P. §8.215(c)(3) (2002); H. Lila Hubert, Comment, In the Child’s Best Interests: The Role of the Guardian ad Litem in Termination of Parental Rights Proceedings, 49 U. Miami L. Rev. 531, 566 n.48 (Winter 1994), citing Fla. Stat. §39.465(2)(b)(3) (1993).
10 Guidelines for Guardian Ad Litem Volunteers, Sixth Judicial Circuit, #8.
11 Id. at #11.
12 Dependency Volunteer Training Manual, supra note 1, at Roles and Responsibilities of the Guardian ad Litem, *38.
13 Renee Goldenberg and Nancy S. Palmer, Guardian ad Litem Programs: Where They Have Gone and Where They Are Going, 69 Fla. B.J. 83, 84 (Dec. 1995).
14 For a detailed discussion of termination of parental rights and a GAL’s ability to independently pursue such proceedings, see Hubert, supra note 9. Under Fla. Stat. §39.807(2)(a) (2002), a GAL must be appointed in every termination of parental rights proceeding.
15 Dependency Volunteer Training Manual, supra note 1, at Writing Reports, *9.
16 Id.
17 Goldenberg and Palmer, supra note 13, at 88. This article was written before Scaringe v. Herrick, 711 So. 2d 204 (Fla. 2d D.C.A. 1998).
18 Id., quoting Comment, Use of Extra-Record Information in Custody Cases, 24 U. Chi. L. Rev. 349, 357 (1957).
19 Id.; Goldenberg and Palmer, supra note 13, at 88.
20 Fla. R. Juv. P. §8.215 (2002).
21 Of course, the parties can always agree by stipulation to allow the report into evidence. E.g., Blosser v. Blosser, 707 So. 2d 778, 780 (Fla. 2d D.C.A. 1998) (dissolution of marriage case). However, this is much less likely to happen in a dependency case, especially where the report clearly disfavors one side.
22 See Perez v. Perez, 767 So. 2d 513, 515 (Fla. 3d D.C.A. 2000) (observing that the trial court obtained the parent’s permission to interview the children in camera after the trial court decided that under Scaringe the GAL’s testimony and report contained inadmissible hearsay).
23 It is interesting to note that Judge Blue, who specially concurred in Scaringe to voice his hesitations about GALs, also wrote the Roski decision. Judge Blue was elected as chief judge of the Second District in May 2001 and will serve in that capacity until June 30, 2003. Second District Court of Appeals Web site, available at www.2dca.org/judges/blue.
24 See L.D. v. DCF, 770 So. 2d 219, 220 (Fla. 3d D.C.A. 2000) (observing that the trial judge’s opinion included a disclaimer that the court’s decision would have been the same even without the GAL’s testimony).
25 Hubert, supra note 9, at 565.
26 Michael J. Dale, Providing Counsel to Children in Dependency Proceedings in Florida, 25 Nova L. Rev. 769, 777 and 791 (Spring 2001); Fla. Stat. §§39.807(2)(a) (2002), 61.401.
27 E.F., 639 So. 2d at 640; adopted by the Fifth District in Fisher v. HRS, 674 So. 2d 208, 208 (Fla. 5th D.C.A. 1996); cited with approval by the Third District in L.D. v. DCF, 770 So. 2d 219, 220 (Fla. 3d D.C.A. 2000).
28 Vestal, 731 So. 2d at 829 (Fla. 5th D.C.A. 1999) (distinguishing In re E.F. and Fisher v. HRS).
Michelle Johnson-Weider will graduate in May from Stetson University College of Law. As a volunteer guardian ad litem in the Sixth Judicial Circuit from February 2001 to May 2002, she prepared a report for and testified in one termination of parental rights trial. Upon graduation, she will work in Washington, D.C., as a staff attorney for the U.S. Senate Office of the Legislative Counsel.
This column is submitted onb ehalf of the Family Law Section, Caroline Black, chair, and Rana Holz, editor.
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