On May 17, 2018, the Michigan Court of Appeals released their decision in Farris v McKaig, ___ Mich App ___; ___ NW2d ___ (2018)(Docket No. 337366) holding that a lawyer-guardian ad litem (hereafter “L-GAL”) is entitled to the same immunity as other guardian ad litems (hereafter “GAL”) under MCL 691.1407(6), including legal malpractice suits.
The Defendant was appointed as L-GAL by the Antrim Circuit Court to the Plaintiff, a minor child, in child protective proceedings. The parents’ parental rights were terminated as a result of those proceedings, but the Plaintiff’s father was successful in getting his rights reinstated after his case was remanded back to the trial court by the Michigan Supreme Court. The Plaintiff now lives with his father.
The Plaintiff, through the father as next friend, filed a legal malpractice suit against the Defendant alleging that he breached his L-GAL duties to Plaintiff by failing to educate himself of the facts of the child protective proceeding and failing to advocate for his client. The trial court granted summary disposition in the Defendant’s favor on the basis that he is entitled to governmental immunity under MCL 691.1407(6). Plaintiff thereafter appealed to the Michigan Court of Appeals.
The Plaintiff’s primary argument was that L-GALs are distinct from other GALs and were not entitled to legal immunity under the Governmental Tort Liability Act. Pursuant to MCL 691.1407(6), “[a] guardian ad litem is immune from civil liability for an injury to a person or damage to property if her or she is acting within the scope of his or her authority as guardian ad litem”. However, the term “guardian ad litem” is not defined by the Governmental Tort Liability Act.
The L-GAL is a creature of statute and MCL 712A.17c(7) provides that “the court shall appoint a lawyer-guardian ad litem to represent the child” where a child protective proceeding is initiated causing the child to be removed from the parental home. The L-GAL owes its loyalty and duties to the child, not the court. MCL 712A.17d lays out the responsibilities of the L-GAL which include, but are not limited to, the following:
- Respecting the attorney-client privilege with the child.
- Serving as an independent representative of the child’s best interest to the court.
- Undertaking independent investigation of the facts of the case by way of interviews, reading reports and reviewing the DHHS case file.
- Meet with or observe the child regularly and assess the child’s needs.
- Explain the role of the L-GAL to the extent that the child can reasonably comprehend it.
- File all necessary pleadings and call independent witnesses on the child’s behalf at hearings.
- Make a determination regarding the child’s best interests and inform the court of the child’s wishes and preferences.
- Monitor the implementation of case plans and court orders, and also determine whether the services are being provided in a timely manner to the child and the family, whether the family fails to take advantage of the services, and whether the services are accomplishing their intended purpose.
- Identify common interests among the parties and, to the extent possible, promote a cooperative resolution of matters with the parties to the extent consistent with the Michigan Rules of Professional Responsibility.
- Request authorization by the court to pursue issues on the child’s behalf that do not specifically arise from the court appointment.
- Participate in training in early childhood, child and adolescent development.
The Michigan Court of Appeals determined that these responsibilities fit the definition of “guardian ad litem”, which is defined by Black’s Law Dictionary as “[a] guardian, usually a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party”. GALs are frequently appointed in proceedings such as adult guardianships or conservatorships to represent the best interests of parties unable to speak or represent themselves such as children, the elderly and the mentally disabled. Black’s Law Dictionary further defines “guardian” as “[s]omeone who has the legal authority and duty to care for another’s person or property, especially due to the other’s infancy, incapacity or disability”.
The L-GAL is clearly a “guardian” with a legal duty to advocate the child’s best interests, and further is appointed by the court to appear in child protective proceedings on the child’s behalf. However, a GAL and L-GAL do have distinctions in their legal roles. A GAL does not have to be an attorney and can only determine the child’s best interests. A L-GAL must be an attorney and advocates the child’s preference and best interests. Despite the differences in duties and responsibilities, the primary role of the L-GAL is to have the statutory independence to property determine and communicate the best interests of the child to the court. Therefore, L-GALs are clearly intended to be immune from civil liability under MCL 691.1407(6) when acting in their roles.
This decision is important because it ensure the ability of the L-GAL to aggressively advocate for children without worrying about a parent’s threat to sue. An L-GAL worried about having to defend himself from money damages may back off from zealous representatation. Judges have immunity from civil liability arising out of their judicial decisions so that they retain the independence to fairly apply the law without worrying about being sued. The L-GAL is and should be treated in the same regard to avoid chilling effects on advocating preferences or best interests. Children are among the most vulnerable members of our society and deserve the utmost protection under the law. Preserving the independent role of the L-GAL in child protective proceedings helps ensure that the voice of the children will not be silenced when they need help and advocacy the most.