May 9, 2013

Complaints fuel bid to reform children's representation in Maine disputes

A legislator says the system that protects the interests of kids mistreats other parties.

By Scott Dolan sdolan@pressherald.com
Staff Writer

Before David Dutremble got divorced in 2005 and fought for shared custody of his children, he had never heard of a guardian ad litem.

NEW HAMPSHIRE HAS 
GUARDIAN OVERSIGHT BOARD

In New Hampshire, the guardian ad litem program has been overseen by the New Hampshire Guardian ad Litem Board since legislation was passed in 2002. The board has nine members appointed by various members of government and includes two members of the public.

The New Hampshire board has a formal complaint process, with a form that people can fill out online, said Jennifer Heinrich, the board's administrative secretary.

Each complaint is reviewed by a three-member subcommittee that brings concerns to the full board. If the complaint against a guardian is accepted, the guardian can file a response. The board can then review and decide whether to dismiss the complaint or proceed to a hearing. If the complaint is dismissed, the person who filed it has a right to appeal.

New Hampshire maintains records of its complaints, with results posted online. In 50 complaints filed since the beginning of 2005, seven were investigated and had hearings. Six led to reprimands against the guardians, with some suspended or removed from the state roster.

New Hampshire now has 135 certified guardians on its roster. The guardians must first take days of training followed by 30 hours of course work every three years, Heinrich said.

– Scott Dolan

Now, in his first term as a state senator, Dutremble is leading an effort to reform what he considers a broken system, in which judges assign specially registered lawyers or mental health workers to step into the most contentious cases, like divorces, to represent the children.

Dutremble, a Democrat from Biddeford, has filed a bill to make sweeping changes to Maine's guardian ad litem program, including a better definition of the role, a new management structure, a database to track the work, and increased requirements to qualify as a guardian ad litem.

The Legislature's Judiciary Committee will hold a hearing on an amended version of his proposal at 2 p.m. Thursday.

"It's a hot issue. I'm a freshman senator and everyone knows my name," Dutremble said. "I'm getting a lot of pushback from lawyers and the judiciary. There's people who live off the guardian system. It's all about the money."

On opposing sides of the bill are the guardians themselves, and the parents who feel they were wronged by guardians' actions in their cases.

Dutremble said the guardian ad litem assigned to his case immediately sided with his ex-wife and decided that Dutremble's job as a Biddeford firefighter was not beneficial to raising children.

"She came in and started taking sides instead of figuring out what the best interest of the children was," he said. "I didn't know who to turn to. My attorney said, 'That's just the way it is.' "

As he was losing the custody battle, Dutremble was required by the court to pay the fees of the advocate who was making recommendations against him.

"Every time you send an email – cha-ching. Every time you make a phone call – cha-ching. People are afraid to complain because guardians make their life a living hell," he said.

Dutremble said he and his ex-wife ultimately reached a custody agreement on their own, after he had paid a $1,200 retainer fee to the guardian and realized that the cost and the contentious process were not benefiting him, his wife or their children.

He said he has talked to hundreds of people who have had bad experiences with guardians ad litem.

Nearly 300 guardians ad litem are on the state's roster. Most are lawyers and some are mental health workers. All must be licensed in their profession and must complete at least three days of social work training to be admitted to the roster, then must complete six hours of course work each year, said Mary Ann Lynch, spokeswoman for the state's judicial branch.

A judge appoints a guardian ad litem in three kinds of cases: probate court cases such as adoptions or to protect the interests of a disabled person; cases in which the state Department of Health and Human Services intervenes to protect neglected and abused children; and divorce or family matter cases in which parental rights, responsibilities and child custody are in question.

Lynch said the vast majority of complaints come from child custody disputes, because guardians are assigned only in the most contentious cases.

"In 93 percent of (custody) cases, we do not appoint a guardian ad litem," Lynch said. "In the vast majority of those cases, parents come to an agreement about parental rights and responsibilities."

In 2012, the state's courts had 8,911 family matter cases involving children. A guardian ad litem was assigned in 657 of those cases. In 2011, there were 9,752 family matter cases; a guardian was assigned in 673.

"What the guardian is doing is an investigation and determining what is in the best interest of the child," Lynch said. "Guardians do not have the power to order anything. They make recommendations to the court."

The judge decides whether to accept a guardian's recommendation, and in some cases will deviate from the recommendation, she said.

"The law has evolved with the idea that the parents in these small sliver of cases may have very different ideas about what is in the best interest of the child," Lynch said. "These are the most hotly contested cases."

Maine has no board or managing entity to oversee guardians ad litem, and each one works independently. While cases are ongoing, parents can file complaints directly with the judge who assigned the guardian. If the case has concluded, complaints are directed to the chief judge of that court.

Lynch said the judicial branch has been working to reform the system. The Maine Supreme Judicial Court created two task forces to recommend changes. One reported back last year on ways to improve the way complaints about guardians are handled. The second reported at the beginning of this year on how to overhaul the program.

Two months ago, the courts issued a new rule requiring a judge to set the scope of work the guardian is expected to do, capping the hours and how much they can bill.

Jerome Collins, a retired psychiatrist from Kennebunkport, is a member of a group called Guardian ad Litem Alert who got involved after his son, Paul, was assigned a guardian in his divorce case.

Collins said he feels that guardians have too much power over people's lives and make large amounts of money doing it.

"It's a lack of oversight, it's a lack of supervision, lack of the judicial branch having a handle on what's going on," he said.

Collins said that before changes were enacted in the program recently, he collected stories of divorcing families paying guardian ad litem bills of more than $10,000.

"People are being bankrupted by this," he said.

Collins said his group has more than 400 members. He likened it to a support group whose members lobby for each other, communicating through emails, Facebook and blogs.

Collins got so involved in the issue that the chief justice of the state Supreme Court chose him to represent the public and serve on both task forces to reform the program. He disagreed with the final report on how to improve the complaint process, and quit the task force that was trying to overhaul the program before that group drafted its report.

He said the other members of the task force, including judges and guardians, were too involved in the system to be able to make adequate changes.

"It was basically what our group calls the divorce industry," he said. "I was the lone public individual. It was basically a group that all made their living on divorce."

Richard Bevins, a licensed therapist from Auburn, has acted as a guardian ad litem for 20 years. "I don't think anyone is out there to make a killing," he said.

Bevins said he charges $120 per hour, at an average of about 10 hours per case. He attaches his itemized bill to his report when he submits it to the court. He takes 10 to 15 cases per year and rarely earns more than $2,000 per case.

"I have one or two going at any given time, and I have a pro bono case going at any given time," he said. "I couldn't do any more and do a good job."

Bevins said that in every case, one person will be less happy about his recommendation to the court.

"What I say to people at the outset of a case is, 'I only get a Christmas card from one person,'" he said. "I don't set out to make friends with them. I set out to make a good determination for the kids."

Bevins said the one reform being discussed that frightens him would remove judicial immunity from guardians, opening them up to civil action by unhappy parents.

"If I was personally liable for a lawsuit from a party who filed a frivolous complaint," he said, "I would be potentially looking at a loss that I would have to pay personally."

Toby Hollander, a Portland attorney who is president of the Maine Guardian ad Litem Institute, an unofficial group of guardians with about 150 members, has worked as a guardian ad litem for more than 20 years. He agrees that reform is needed, but that would require funding.

"Supervising 300 independent contractors is going to take some staff time. It's not like this is easy to do," Hollander said.

Like Bevins, Hollander doesn't believe that anyone goes into guardian work for the money. Hollander charges $100 per hour and takes 12 or 13 cases per year, he said.

"I've been criticized because I don't think it's as big of a problem as they say it is," Hollander said. "I think it's getting this much attention because it's gotten before the Legislature."

Scott Dolan can be contacted at 791-6304 or at:

sdolan@pressherald.com

 

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