KENNEBUNKPORT — When courts get involved with families about any aspect of child custody, it is always a high-stress situation for all concerned. For families and children facing divorce action, child protection considerations or probate-mandated custody, the circumstantial dynamics are already dire. Courts add yet another level of stress to these situations: They use unfamiliar language, an unfamiliar modus operandi and a traditional adversarial model of problem solving that is imposed on top of the unstructured, human adversarial conditions.

Courts will frequently add a guardian ad litem to this volatile mix, and the total picture can disintegrate further. A guardian ad litem (usually a lawyer or mental health professional) works for the judge in the case, collecting data about the case that may not be easily accessible to the judge, such as home circumstances, parenting skills, health, education and mental health issues. All of this is to be carried out “in the child’s best interest.” It is a delicate balancing act, actively scrutinized by all the players, and the stakes are extremely high: the child or children, who are the focus of varying custody arrangements.

Families involved with guardians ad litem have been vocally unhappy with oversight of the Maine guardian ad litem program for years. In a nationally respected 2006 performance audit of Maine’s guardian ad litem program, the Maine Office of Program Evaluation and Government Accountability did a careful analysis and made recommendations aimed at program correction. It was largely tabled by the Judicial Branch.

In 2013, state Sen. David Dutremble and many people victimized by the guardian ad litem program decided to legislate reform of the program. They used the 2006 OPEGA report as the basis for a proposal to improve the functioning of guardians ad litem with respect to children. It involved many willing workers who were program victims and received broad, bipartisan legislative support – all the way to the governor. There was huge excitement and a great sense of accomplishment on the part of everyone who worked for the bill.

After Dutremble’s bill was signed into law, it went to the Judicial Branch for implementation. In the intervening time, families have continued to face serious problems with the guardian ad litem program.

As required by law, an extensive report on the program’s progress was given to the Judiciary Committee by Chief District Court Judge E. Mary Kelly about two weeks ago. Maine Guardian ad litem Alert has prepared a rebuttal.

Here are a few of our concerns:

Kelly’s report doesn’t answer public questions: How are the various changes instituted by the Judicial Branch working? Are consumers satisfied? Is there yet any supervision or oversight of guardians ad litem? If so, how is it being carried out? Are there any data to support a public evaluation?

The judge’s review ignores the important 2006 OPEGA audit of Maine guardians ad litem as a baseline measurement with which to gauge change. OPEGA essentially said: “Here are the guardian ad litem program’s problems – and here’s what needs to be done to correct them!” To many consumers, the program doesn’t look too different in 2017 than it did in 2006. The significant issues are the same: no managerial oversight of guardians ad litem, no enforcement of written changes dealing with their role, no quality assurance and a complaint procedure that is not user-friendly.

The cornerstone of the recent Judicial Branch report is a detailed presentation of the new guardian ad litem complaint procedure. This opaque written procedure is handled exclusively by an exchange of mailed letters. It is the only avenue for enforcement of oversight.

The process seems to assume that the judges appointing guardians ad litem also exercise the best oversight of guardians ad litem. This is a highly disputable concept, entangled in local bench-bar politics and power struggles – and it would require a judge to admit bad judgment in an appointment, calling attention to bad judgment in other decisions.

In 2016, judges dismissed 100 percent of complaints filed against Maine guardians ad litem. This seems highly suspect as oversight or quality assurance, particularly when no other corrective action is imposed. It raises this question: Doesn’t the public deserve better?

The complaint procedure is neither useful nor user-friendly. It is time for the Legislature to ask for an OPEGA audit of the guardian ad litem program, which would analyze problems and lay out a blueprint for change. Kelly and the Judicial Branch could show leadership by joining in the call for OPEGA to evaluate the functioning of the guardian ad litem reform law.

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