Maine - A Response to the Proposed Repeal and Replacement of Maine Guardian ad litem Rules

Hon. Leigh Saufley
Chief Justice
Maine Supreme Court


Dear Chief Justice Sauflley,

I am responding to the request from the Judicial Branch for comments from the public  on the proposed “new” Rules for Guardians ad litem. In my opinion, they are badly off the mark, if their aim is to help the majority of those public consumers, who might use them to understand how GAL’s function and how to make a complaint about a GAL’s defective performance. Perhaps unintentionally, they seem to distort the aims of the Maine legislature and the Governor who created the law in 2013. The Dutremble law was aimed at clarifying GAL functioning with appropriate boundaries and protecting consumers of Guardian ad litem services from abuse by GAL practitioners. The proposed “new” Rules, as I read them, shift aim and focus of the 2013 Dutremble law, and, by proposed regulation seem designed to defend and protect GALs, as members of “the legal guild”. Self-represented consumers of service are out of the picture altogether.

The proposed “new” Rules are lengthy (77 pages), often ambiguous and subject to many escape clauses. There are many statements in the Rules that are followed by exceptions to the rule. This oppositional duality throughout the Rules  neutralizes and confuses the intent, meaning and strength of the initial rule, and it probably reflects the anxiety of  “stake holders” on the working committee, who created the document. They may not want to be hampered or hemmed in by any Rules.

The section dealing with consumer complaints (see page 35 RULE 9. Guardian ad litem Review Board Complaint System) about GAL services is written in complex legal language, full of references to other laws, unfamiliar to the general public. It prescribes a labyrinthine, multi layered procedure for making a complaint. Even relatively trivial, minor complaints must follow this protocol. As I read it and imagined using it myself in a ‘pro se’ effort, I felt shut out and stymied. The complaint procedure is written by lawyers for lawyers. It also proposes that all consumer complaints be managed by the lawyers'’ “guild”, the Overseers of the Bar, considered a formidable entity by most of the public. The complaint procedure is an airtight, legalistic, time-consuming, intimidating piece of work that virtually no untrained, unrepresented “consumer” will be able to use to complain about service. Preventing complaints from self-represented members of the public appears to be its purpose. Kill all public complaints with legalistic complexity. "Pro se" be damned, is the message I read!

The most troubling problem is represented by the authorship of the proposal “new” Rules for GALs. It appears to be the work of a “Stakeholder’s committee”, almost exclusively members of the powerful “divorce industry”. The authors show no consideration for how a ‘pro se’ (self represented person) is supposed to use the arcane, complaint “tool”. As you reported to me earlier this year, a startling 74% of family court users are ‘pro se’. It is being proposed by “stockholders”, who authored it, that this 74% majority be given a complex, “legal tool” that they will be unable to use in making a complaint about GAL service. The Rules, as a tool, by their complexity, would exclude the majority of public users from making a complaint on their own. Shouldn’t ‘pro se’ persons also be considered significant “stakeholders”? Their stakes are their children, their time and their life savings; not professional financial advantage. Their kids are priceless to them (and to all of us) and represent future, valuable human resources for Maine. Why are ‘pro se’ stakeholders denied a seat at the table that would reflect their proportional, numerical dominance in courts? It might be viewed as an exclusionary problem of vast proportions that needs correction in the interest of public fairness, and in the interests of reality. It is an awkward commentary on family courts in a democratic society.

We need to understand the present reality that Family courts at this time are no longer  the exclusively purview of an  elite, professional group of the legal profession when 74% of users are self-represented non-lawyers! It is time for everyone to awaken to these startling facts and address the  major, unstoppable systems change that is going on right now!

It also should be noted that the public complaint protocol is the only “quality assurance” mechanism for the public governing the actions of Guardians ad litem. Without supervision, with just 18 hours of “education”, with quasi judicial immunity, with no meaningful “oversight”, a complaint from a consumer is the only way to request  major or minor “corrective action” for a malfunctioning GAL. If this procedure is so complex as to be unusable by non-lawyers, GALs are essentially in a position of being granted secular infallibility by the Judicial Branch. One has to ask rhetorically: “Don’t GALs ever need some form of  correction; are they always “perfect?” Can’t one find a more responsible way to correct and improve their function?

My opinion is that the Judicial Branch needs to go back to the drawing board and begin again in writing new Rules for GALs. It needs to include proportionally the biggest group of players in family courts, the 74% ‘pro se’ users, on any planning committee addressing “officers of the court”. It needs to approach the whole issue of GAL management in a much less defensive, overprotective manner. It needs to listen to and care about the  systemic changes catalyzed by amazing numbers of ‘pro se’ representatives. The present document is “tone deaf” to ‘pro se’.  Is this its aim, or is it impossible for the Judicial Branch to escape the political influence and power of the divorce bar?

We sincerely hope this document can be rewritten in tune with current realities, and with participation of those who are major users of the GAL system. Would it help the Judicial Branch to overcome the powerful, internal, self-serving, lobbying politics of the “divorce industry Bar”, if there were to be  grass roots legislation empowering ‘pro se’ representatives on JB committees and throughout the family court system?

Your 74% ‘pro se’ statistic is a powerful number that  cries for legal fairness and appropriate democratic empowerment!

Sincerely,

Jerome A Collins, MD
Kennebunkport, Maine

For further information on the Family Court and divorce industry crisis please email at MeGALalert@gmail.com or find us on Facebook.

For further reading:

2014-05-28 PROPOSAL FOR AN AUDIT OF ‘PRO SE’ REPRESENTATION IN MAINE FAMILY COURTS

2014-03-18 Maine Voices: We must work together to ensure justice truly is for all in Maine - a response

Is this Child Endangerment or Just a Legal Formality?

On July 8, 2013 for the first time a bill was signed into law that attempts to control the actions of Guardians ad litem in the state. To control the Judicial abuse that many parents have to deal with as a result of a divorce and or custody in Maine. July 8, 2013 while Governor Paul LePage was signing that bill our Judiciary was displaying the sensitivity that it has come to be known for. A parent who has been battling the courts and his ex for prescribed medical treatment that his son is in need of had asked the courts to look at and address this issue. This was denied that day by the higher courts.

Can this be considered a form of Child Abuse? Is this why so often we find that Guardians ad litem do not report abuse to the courts?

This parent has the prospect of going to court to fight a system that is turning a blind eye to a problem. Better to push the problem off on someone else than deal with the problem now. Will the courts be held accountable if this child comes to harm as a result of this negligence?

Several years ago there was a case where the father of a child that hit a brick wall when trying to get answers from Maines department of Health and Human Services (DHHS). It was in many respects similar to this case. He was told that the acting mother did not have Maine Care insurance yet (this from both the acting mother, Guardian ad litem and the attorney for the mother). It was discovered on a visit to the doctors by the father that the acting mother had the insurance for her half brother - and had it for several months. In trying to secure a card for his son the father went to DHHS directly only to be told because of HIPPA regulations they (DHHS) could not talk with him about his son nor could the father request a card for his son. In fact DHHS could not even admit that the child was even in the system to the father. The acting mother was asked to give permission to DHHS so that DHHS could speak with the father - this was denied by the acting mother. The Guardian ad litem did nothing to help. The father's lawyer became involved only to be told the same thing. That the father of the child was not entitled to any information about his son that DHHS had on file unless the mother or acting mother gave permission for this to happen. In effect the father - was being prevented from caring for his son - yet was responsible for the medical care of his son. Information about his son was being kept from him by a system that essentially was saying that who ever got there first was in charge - this was admitted by several DHHS employees that the father talked with. In the end the father through his lawyer was able to secure a Maine Care Card that would allow him to take his son for treatment. Was this necessary?

One has to ask - how can a parent do what is right for their child(ren) if he/ she is prevented from doing so. If information or services are denied to a child for the mear reason of hurting the other parent. In the end the parent that is denying access (or at least making it hard to come by) is directly hurting his/ her child first and the other parent second. In the current case that is going on the courts have been put on notice that there is child neglect going on as the child is being denied his prescribed medical treatment. Court officers are mandatory child abuse and neglect reporters who must take action to protect the best interest of the child. While the higher court in this case appears not to want to steal the lower courts thunder - this parent approached the higher court because the lower courts were delaying any judgement. This parent has the prospect of waiting months before a judgement will be rendered. Meanwhile this parent's child will continue to go without treatment.

If you have conerns about a Guardian ad litem, Parental Coordinator or a Family Lawyer please contact us at NationalGALalert@gmail.com or stay up to date at Facebook.

We also encourage you to take our survey on Guardian ad litem performance which can be found here: GAL Performance Survey.