This abuse and neglect case raises the legal question of whether a guardian ad
litem owes a duty of confidentiality to his or her infant charge such that, where the infant
demands confidentiality with respect to information regarding abuse that the infant discloses
to the guardian ad litem, the guardian may be justified in not informing a circuit or family
court of the abuse alleged by the infant.
On October 25, 2005, a multi-disciplinary treatment team (hereinafter “MDT”)
meeting was held. Among those present at the meeting was Mary Ellen Griffith, who had
been appointed guardian ad litem for the children. The MDT agreed to a non-custodial
improvement period that would include various services for Linda and James, (See footnote 6) and would
also include weekly daytime unsupervised visits between the three girls and both Linda and
James.
Later that same day, Ms. Griffith met with Christina and her sisters at the Paul
Miller Shelter, which is where the girls had been placed. During the visit, Ms. Griffith spoke
privately with Christina and questioned her about her prior allegations of sexual misconduct.
Ms. Griffith states that Christina first questioned her regarding the attorney/client privilege
and sought assurances that any information she revealed about sexual misconduct by James
would not be shared. Christina then advised Ms. Griffith that James had in fact touched her
inappropriately. However, Christina reported that she was “okay” and expressed her desire
to go home to her mother. She further stated that she would not testify about James' abusive
conduct. (See footnote 7)
At an adjudicatory hearing on November 18, 2005, Linda and James stipulated
to the allegations of domestic violence contained in the abuse and neglect petition. The
children were adjudged neglected. A post-adjudicatory improvement period was granted to
Linda and James. The improvement period was agreed to by all parties, including Ms.
Griffith. The goal of the improvement period was reunification of all three girls with Linda
and James, and it included unsupervised visits with both adults. The court set the matter for
review on February 17, 2006.
In January 2006, prior to a scheduled MDT meeting, Ms. Griffith was advised
by Stacy Cockerham, a case-worker, that Christina had disclosed to her James' sexual
misconduct, and Christina had also revealed the abuse to Nancy Silvazi, a foster-care agency
worker. (See footnote 8) Christina also informed these two women of her prior disclosure of the abuse to her
guardian ad litem, Ms. Griffith. (See footnote 9) Thereafter, the Department of Health and Human Resources
(hereinafter “DHHR”) petitioned the circuit court to remove Ms. Griffith as guardian ad litem
due to conflict. Following a hearing on February 17, 2006, the circuit court denied the
DHHR's motion to remove Ms. Griffith. The circuit court found that the lawyer/client
privilege is applicable to the relationship between a child and his or her guardian ad litem,
and denied the DHHR's motion to remove Ms. Griffith as guardian ad litem. The DHHR
then filed this appeal seeking reversal of the circuit court's order. (See footnote 10)
“'[a] circuit court, upon motion of a party, by its inherent power to do what is reasonably necessary for the administration of justice, may disqualify a lawyer from a case because the lawyer's representation in the case presents a conflict of interest where the conflict is such as clearly to call in question the fair or efficient administration of justice. Such motion should be viewed with extreme caution because of the interference with the lawyer-client relationship.' Syl. Pt. 1, Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991).” Syllabus point 2, Musick v. Musick, 192 W. Va. 527, 453 S.E.2d 361 (1994).
Syl. pt. 3, State ex rel. Michael A.P. v. Miller, 207 W. Va. 114, 529 S.E.2d 354 (2000). In reviewing the circuit court's ruling on this matter, we are mindful that
[i]n reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 108, 492 S.E.2d 167 (1997).
In this case, the circuit court's decision was based upon a legal determination. Therefore, we
apply a de novo standard. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question
of law or involving the interpretation of a statute, we apply a de novo standard of review.”).
Likewise, many of the duties required by the “GUIDELINES FOR
GUARDIANS AD LITEM IN ABUSE AND NEGLECT CASES” established by this Court
and set out in Appendix A of In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993), are
those that would be performed by a lawyer representing a client. For example, Rules 8
through 22 appear under the heading “Preparation for and Representation at Adjudicatory
and Dispositional Hearing” and require guardians ad litem to perform a wide variety of
lawyerly duties. For example, several of the rules require a guardian ad litem to
8. Pursue the discovery of evidence, formal and
informal.
9. File timely and appropriate written motions such
as motions for status conference, prompt hearing, evidentiary
purpose, psychological examination, home study, and
development and neurological study.
. . . .
13. Maintain adequate records of documents filed in
the case and of conversations with the client and potential
witnesses.
. . . . 16. Subpoena witnesses for hearings or otherwise
prepare testimony or cross-examination of witnesses and ensure
that relevant material is introduced.
190 W. Va. at 41, 435 S.E.2d at 179.
Due to the legal nature of a significant portion of the duties of a guardian ad
litem, we believe that, as a general rule, the West Virginia Rules of Professional Conduct,
which govern the conduct of lawyers practicing within the State of West Virginia, should
apply to the conduct of guardians ad litem. (See footnote 14) Accordingly, we now hold that,
because many aspects of a guardian ad litem's representation of a child in an abuse and neglect proceeding
comprise duties that are performed by a lawyer on behalf of a client, the rules of professional
conduct generally apply to that representation.
We must emphasize, however, that this is merely a general rule. While it forms
a necessary part of our analysis, it does not answer the specific question herein raised. The
question we must resolve today is whether a guardian ad litem appointed in an abuse and
neglect case owes a duty of confidentiality to the child he or she is representing such that the
guardian ad litem is prohibited from disclosing to the presiding court information regarding
abuse that the child wishes to remain confidential.
Ms. Griffith claims she was bound to keep her client's confidences by Rule
1.6(a) of the Rules of Professional Conduct, (See footnote 15) which states in relevant part, that “[a] lawyer
shall not reveal information relating to representation of a client unless the client consents
after consultation . . . .” Ms. Griffith urges that this confidentiality in the relationship
between a guardian ad litem and an infant furthers the compelling need of the child to have
a guardian ad litem with whom he or she can freely communicate. However, we believe that
the strict adherence to this rule advocated by Ms. Griffith fails to fully appreciate the
complex nature of abuse and neglect proceedings, as well as the multi-faceted duties of
guardians ad litem. Indeed, the obligations of a guardian ad litem extend much farther than
those anticipated by the typical lawyer/client relationship.
The predominant charge to lawyers representing children involved in abuse and
neglect cases is that the best interests of the children is of paramount concern. In re Amber
Leigh J., 216 W. Va. 266, 272, 607 S.E.2d 372, 378 (2004) (per curiam) (“Of course, [in
abuse and neglect cases] the best interests of the child are paramount.” (internal quotations
and citation omitted)); Syl. pt. 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589
(1996) (“[T]he primary goal in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the children.”); In re Jeffrey R.L., 190 W. Va. 24,
32, 435 S.E.2d 162, 170 (same); Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d
866, 872 (1989) (“[T]he best interests of the child is the polar star by which decisions must
be made which affect children.”). Thus, guardians ad litem serve a dual role. In addition to
serving as an advocate for the child[ren], they must also fulfil their duty to fully inform
themselves of the child[ren]'s circumstances and determine and recommend the outcome that
best satisfies the child[ren]'s best interests. This Court recently alluded to the dual capacity
of a guardian ad litem in the case of In re Elizabeth A., 217 W. Va. 197, 204, 617 S.E.2d 547,
554 (2005) (per curiam), wherein we observed that “[d]uring the proceedings in an abuse and
neglect case, a guardian ad litem is charged with the duty to faithfully represent the interests
of the child and effectively advocate on the child's behalf.” (Emphasis added). This dual
role was likewise recognized in Syllabus point 5 of In re Jeffrey R.L., 190 W. Va. 24, 435
S.E.2d 162:
Each child in an abuse and neglect case is entitled to effective representation of counsel. To further that goal, W. Va. Code, 49-6-2(a) [1992] mandates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furthermore, Rule XIII of the West Virginia Rules for Trial Courts of Record[ (See footnote 16) ] provides that a guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding, and shall make his or her recommendations known to the court. Rules 1.1 and 1.3 of the West Virginia Rules of Professional Conduct, respectively, require an attorney to provide competent representation to a client, and to act with reasonable diligence and promptness in representing a client. The Guidelines for Guardians Ad Litem in Abuse and Neglect cases, which are adopted in this opinion and attached as Appendix A, are in harmony with the applicable provisions of the West Virginia Code, the West Virginia Rules for Trial Courts of Record, and the West Virginia Rules of Professional Conduct, and provide attorneys who serve as guardians ad litem with direction as to their duties in representing the best interests of the children for whom they are appointed.
(Footnote added).
Thus, the role of guardian ad litem extends beyond that of an advocate and
encompasses also a duty to safeguard the best interests of the child[ren] with whose
representation the guardian has been charged. Bearing this in mind, we now consider how
the confidentiality provision of Rule 1.6 of the Rules of Professional Conduct impacts upon
this role. (See footnote 17)
Ms. Griffith recognizes that children represented by guardians ad litem are
under the disability of age. She contends, however, that the West Virginia Rules of
Professional Conduct and existing case law recognize the ability of competent children to
direct their legal representation, which includes, by implication, the competent child's
assertion of confidentiality.
Rule 1.14 of the West Virginia Rules of Professional Conduct addresses a
lawyer's responsibility to a client who is under a disability, including an age disability, and
states in relevant part:
(a) When a client's ability to make adequately considered
decisions in connection with the representation is impaired,
whether because of minority, mental disability or for some other
reason, the lawyer shall, as far as reasonably possible, maintain
a normal client-lawyer relationship with the client.
(Emphasis added). The comment to Rule 1.14 elaborates, in part, that
The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, 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. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. . . .
(Emphasis added). Importantly, however, the lawyer's duty under Rule 1.14 to “maintain a normal client-lawyer relationship with the client” extends only “as far as reasonably possible.” Furthermore, the recognition in the comment to that rule that “to an increasing extent the law recognizes intermediate degrees of competence” is tempered by the clarification that a child's opinion as to his or her custody is “entitled to weight in legal proceedings.” (Emphasis added). Thus, while the child's opinions are to be given consideration where the child has demonstrated an adequate level of competency, there is no requirement that the child's wishes govern. As this Court explained in In re Lindsey C.,
Obviously, those recommendations may or may not be identical to those the child would make to the court, left entirely to his or her own choices. However, in the case of a child, justice is clearly best served by requiring that counsel and the court exercise their respective best judgment in all aspects of the case, and that the court have the benefit of counsel's candid and independent assistance in ascertaining the best interests of that child.
196 W. Va. 395, 409, 473 S.E.2d 110, 124 (1995). Clearly, though, the recognition that a child's opinions are entitled to be weighed in the course of the guardian ad litem's representation in no way minimizes the guardian's ultimate duty to safeguard the child's best interests. See, e.g., In re Elizabeth A., 217 W. Va. 197, 205, 617 S.E.2d 547, 555 (2005) (finding that “[t]he guardian ad litem and DHHR were not given a meaningful opportunity to introduce substantive evidence or obtain additional testing necessary to determine the best interests of the two children whom the guardian ad litem was appointed to serve”) (footnote omitted). Where a child's wishes are adverse to the course that serves the child's best interests, they simply cannot be followed. See In re Lindsey C., 196 W. Va. 395, 409, 473 S.E.2d 110, 124 (“As we indicated in Jeffrey R.L., counsel for the child is expected to pursue that central purpose [to ascertain and serve the best interests of the child] even when his or her client, the child, may have a different view of what is in the child's best interests.”). Nowhere is this reasoning demonstrated more clearly than in a situation where the child's desired course would expose the child to a high risk of probable harm.
Furthermore, in addition to weighing a child's opinion (such as the desire for
confidentiality as issue in this case) against the child's best interests, a guardian ad litem
must also balance the child's desire for confidentiality with the guardian's duties to the court.
As noted above, a guardian ad litem “shall make a full and independent investigation of the
facts involved in the proceeding, and shall make his or her recommendations known to the
court.” Syl. pt. 5, in part, In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162. (See footnote 18) Accordingly,
we now hold that while a guardian ad litem owes a duty of confidentiality to the child[ren]
he or she represents in child abuse and neglect proceedings, this duty is not absolute. Where
honoring the duty of confidentiality would result in the child[ren]'s exposure to a high risk
of probable harm, the guardian ad litem must make a disclosure to the presiding court in
order to safeguard the best interests of the child[ren]. (See footnote 19)
In the instant case, after Christina had recanted her initial complaint that her
mother's boyfriend, James B., had been touching her inappropriately in a sexual manner,
Christina W. revealed to Ms. Griffith that such touching had in fact occurred. Although
Christina W. demanded that this information remain confidential, Ms. Griffith's failure to
disclose this information to the presiding court resulted in Christina having unsupervised
visitation with James B. Until such time as the allegations of sexual abuse could be properly
investigated, unsupervised visitation between Christina W. and James B. was most certainly
not in Christina's best interest.
In this appeal, DHHR sought to have Ms. Griffith removed as guardian ad litem
in this matter. However, the circuit court found that there was no need to remove her because
the confidential information, Christina W.'s allegations of sexual abuse, had been brought
to the court's attention, and thus, the conflict had been removed. Prior to this opinion, the
duties of a lawyer placed in the situation in which Ms. Griffith found herself were not clear.
Insofar as this opinion makes clear a lawyer's duties with respect to disclosure of confidential
information, and because the court was ultimately made aware of Christine W.'s allegations
of abuse, we agree with the circuit court and see no need to remove Ms. Griffith.