January 09, 2017 Articles

Breaking Bias: Scandal in a Lay Guardian ad Litem Office

By Adam Ballout

One of the most pivotal and formative relationships we will ever have as human beings is our relationship with our parents. Not only is the presence of a parent-child relationship significant, but in many ways the absence of a parent-child relationship can be equally, if not more, influential to a child. Our relationship with our parents sets us on a trajectory that shapes how we engage with the world, how we view ourselves, and the nature of the relationships we form.

Most people have never heard of dependency law, but almost everyone has heard of child protective services and foster care. Dependency law deals with court proceedings, typically in cases of suspected abuse or neglect, involving children who are being removed from their parents and placed into protective custody. This can happen either by law enforcement or a court order. When children are taken away from their parents, a 72-hour emergency hearing known in Washington State as a "shelter care hearing" takes place, during which it is determined whether or not children must remain in state care. Some dependency cases can last for years.

In Washington State, when a foster home or relative placement cannot be found, children are often placed in motels with social workers assigned to stay overnight with them. Siblings are routinely separated from each other and are often placed into different homes, not even necessarily in the same county from which they were removed. The love and support of a brother or a sister can make all the difference in the world to a child in these traumatic situations, and so the separation from siblings results in additional trauma. Children often have no time to say goodbye to family, friends, or pets, and these distressing and destabilizing events happen routinely on a daily basis in every part Washington (and, indeed, around the country).

Washington does not provide a right to a lawyer for children when they are removed by Washington's Child Protective Services and placed into foster care; however, federal law requires that a guardian ad litem or court-appointed special advocate be appointed to represent the best interest of children (42 U.S.C. § 5106(a)(2)(B)(xiii)). In Snohomish County, Washington, that role is allowed to be performed by lay volunteers, referred to as volunteer guardian ad litems (VGALs). The VGAL program is charged with the sacred obligation of advocating for the best interest of children who are alleged to have been abused or neglected. To that end, VGALs are granted party status, access to court resources, and otherwise restricted investigative tools that ordinary citizens would not have access to. VGALs have discretion to approve or reject service providers for parents in addition to veto authority over visit supervisors and relatives who wish to have contact with a child. Volunteers are supported by program coordinators who oversee them and by two full-time VGAL program attorneys who represent them in court.

The powers entrusted to the VGAL program inherently come with tremendous deference from the courts. In order for any court system to handle thousands of cases per year, it must rely on reports it receives from the parties in a case. The VGAL system is charged with representing a child's best interest and given leeway to investigate the facts of the case, so the courts often rely heavily on the VGAL recommendations. Yet, concerns of bias have recently begun to undermine trust in the entire VGAL system.

A House of Cards
On September 11, 2015, following a termination of parental rights case, Superior Court Judge Anita Farris made findings that a VGAL had placed a child's physical welfare at risk by attempting to manufacture evidence against parents fighting to be reunited with their child. In addition, the VGAL program was caught violating the confidentiality of the parents by leaking private confidential information to nonparties. Evidence related to that misconduct was then deliberately destroyed.

After days of evidentiary hearings in March 2016, Judge Farris went on to find that the VGAL program failed in its duties to represent the best interest of children, maintain independence and professional conduct, avoid conflicts of interest, treat parties with respect, and become informed about the case. Further, in the process of litigating this case, it was also proven that yet another member of the same VGAL program had lied to gain access to the Washington Defender Association's defense attorney email listserv, a listserv for lawyers representing parents. During her four years on the listserv, the VGAL forwarded strategic information about opposing counsel to the lead attorney of the VGAL program for use in individual cases.

While attempting to cover up these wrongdoings, the VGAL was found to have committed first-degree felony perjury, theft, and fraud. This volunteer was a member of the VGAL program for over 11 years and touched hundreds of cases, thus affecting many children and their families.

Our office, ABC Law Group, formally filed a complaint with Snohomish County against the VGAL for spying on the Washington Defender Association listserv, but it was immediately dismissed by VGAL officials as having "no potential merit." It was later revealed that the VGAL program had dismissed all prior complaints the program had ever received as having "no potential merit" and had done so without a proper grievance procedure and with no disciplinary action ever taken at any level. The VGAL program additionally violated the confidentiality of complainants by leaking their identity to the VGAL being investigated while the complaint was still being considered. This not only violated the VGAL program's duties under the guardian ad litem rules but also created an environment of retaliation and hostility within the legal community.

One foster family filed a complaint that a VGAL never went to see the child placed in the VGAL's care. That family became a target of severe retaliation. Despite no safety concerns related to the child, upon learning of the complaint the VGAL program made the recommendation that the court remove the child from the care of the family.

In a failed effort to cover up years of ongoing systemic violations of ethics rules, the VGAL program engaged in a pattern of personal and professional retaliation against attorneys who moved to expose its wrongdoing. In the above referenced case, Judge Farris specifically found:

During this case, the Snohomish County VGAL program attacked the mother's attorneys and their small law firm professionally, personally, financially, and sometimes outside of official court process. I find that all of the surrounding facts combined together do prove that the VGAL program engaged in a pattern of retaliation against the mother's attorneys and their ABC Law Firm while this case has been pending.

Oral Decision at 118.

The court went on to find that

[w]hen VGALs retaliate, they're placing their personal passions for revenge ahead of the needs of any children whose best interest they're supposed to protect. Retaliation is contrary to permanency because termination verdicts in adoption placements will not be secure if it can be shown they were garnered from a system that tolerates personal and financial retaliation against attorneys for zealously doing their jobs.

Id. at 119.

Interfering with Family Integrity
The goal of a dependency case is almost always reunification of the child with his or her parents. Services and treatment are to be provided so that reunification can happen quickly, understanding that children do best with their parents. Yet, despite these clear goals, the VGAL program was found to have consistently disrespected parents and undermined the goals of reunification, particularly for low-income parents.

For example, some VGALs were found to have created fake www.match.com dating profiles to lure parents who were working toward reunification with their children in order to gather evidence that would be used against them. Fake dating profiles were designed and calculated to catfish parents based on targeted lies such as identical religious affiliation or specifically desiring women with children. Information gathered in these communications was then used by the VGALs to paint a picture of the parents as somehow unfit. Aside from their blatant dishonesty, these practices also violated Snohomish County rules regarding the private use of email addresses as well as treating all parties fairly and with respect.

Disparate treatment of low-income and indigent parents by the VGAL program has also been an ongoing issue our office has directly experienced. To deter parents' attorneys from gaining access to its files and records, the VGAL program implemented a policy of charging attorneys who represented indigent parents a per page fee for obtaining discovery files. This would occur only after defense attorneys attended a discovery conference and made a subsequent appointment to view discovery, which would be shown only if VGAL staff was present to observe and record what pages were requested.

In contrast, private attorneys representing parents who made too much money to qualify for court-appointed attorneys were provided discovery and records on a CD for free to view at a time and place of their convenience. These disparate accommodations resulted in significant disadvantages to low-income parents involved in the system and came at a time when the VGAL program claimed it lacked the resources to produce discovery electronically at all.

Based on the evidence outlined above, Judge Farris found that the Snohomish County VGAL program engaged in abusive litigation tactics, including "masking misconduct, fabricating facts, and reaping revenge." Id. The VGAL program withheld evidence from opposing counsel, deleted evidence of misconduct, shuffled discovery out of order, and conducted a document dump of 8,000 pages specifically designed to secure and secrete misconduct. The court explained in its ruling:

The document dump is a well-known abusive litigation tactic, often used in large civil litigation involving corporations or government entities. Document dump is defined as the act of responding to a request for information with a large quantity of data that is transferred in an unfriendly and hostile manner. It may be used to hide unfavorable evidence by mingling responsive documents with a large number of nonresponsive documents. Document dumps often produce more information than requested, but in a nonsearchable, unorganized or unlabeled format. The producer then argues it's done the recipient a favor by producing more than requested.

Id. at 75–76.

The VGAL misconduct, as well as the subsequent cover-up of widespread misconduct by the VGAL attorney and the head of the VGAL program, was not designed or intended to help children in any way. Instead, the court found, "[n]ot one of these fabrications did anything to promote the interests of a child. These were not well-intentioned lies. Without exception, their sole purpose was to hide the misconduct of the liar, and that was done at the expense of this child." Id. at 105.

As this case proceeded through months of contested litigation, an underlying issue came to light: The VGAL program has been operating since 1979, yet none of the VGAL program's volunteers, program coordinators, or staff had ever received training or even been made aware of the Guardian Ad Litem Rules set by the Washington State Supreme Court. This would be equivalent to a fire department claiming it did not know fire codes existed, or a senior Internal Revenue Service auditor claiming never to have heard of a tax code. This epic failure has led to catastrophic ethical and legal violations by the VGAL program on an unprecedented scale.

The most recent Superior Court findings regarding the Snohomish County VGAL program, outlined above, highlight the desperate need for effective, confidential, and ethical representation of Washington's children. Washington State is by far one of the worst states in the entire country when it comes to protecting the rights of children entering into state care. A National Report Card on Legal Representation for Abused & Neglected Children found Washington State to be ranked at the bottom of the country with a grade of F when it comes to providing legal representation to help children in dependency matters.

In 2015, there were 8,400 children in out-of-home care in Washington State. Partners for Our Children, Child Welfare Data at a Glance. One study found that two-thirds of King County youth referred for offender matters in 2006 had some form of Children Administration involvement. It also found that children in foster care had a graduation rate of 41.5 percent, the lowest graduation rate of any tracked group, including homeless youth.

Washington State Office of State Superintendent of Public Instruction, Graduation and Dropout Statistics Annual Report (Apr. 2015). That means that, in Washington State, a child living out on the streets has a better chance of finishing high school than a child in foster care.

The removal of a child from a family is a very serious action that must be taken only when the child is truly at risk. Once in care, every effort must be made to minimize time in foster care and work toward reunification. Children in foster care risk trauma that comes from removal from family, but they also risk further abuse. Over the past eight years, the Washington State Department of Social and Health Services (DSHS) has been hit with scores of lawsuits on behalf of children who were placed in foster care, paying out $166 million dollars in personal injury claims for failing to protect those children. Will Drabold, "DSHS Employees Rarely Pay a Price for Failing to Protect Foster Children," Seattle Times, Aug. 18, 2015. Many of the most severely injured while in state care were children who were tortured, starved, or raped, while others died. These numbers fail to take into account the personal cost on the victims as well as the suffering of families who must deal with the pain of knowing this abuse occurred while children were placed out of home.

Conclusion
Advocating for the best interest of children in a dependency case requires vigilance and training in maintaining the confidentiality of the families that VGALs are charged with serving and guarding against bias, prejudice, and burnout. In Washington State, it currently takes 300 hours of training to be certified to massage a horse or other large animal (Washington State Dep't of Health, Animal Massage Certification Requirements), yet it takes less than 24 hours of training for a volunteer to walk in off the street and recommend that a child never see his or her parent again.

Imagine what would happen if jury duty was not mandatory for citizens but a voluntary process instead. What demographic of our community would have the time and the interest to be a permanent volunteer juror? Would that demographic be in any way representative of the diversity of the community? Imagine that permanent juror having a seat at the table after a few hours of training to wield massive influence over your case as well as your personal confidential information.

Studies have shown that when attorneys for children are appointed at that initial 72-hour emergency shelter care hearing, cases wrap up sooner and with more successful outcomes. The 2015 Impact Report by Legal Counsel for Youth and Children indicated that on the issue of placement, children who are appointed counsel for the first hearing are more likely than children without counsel to be placed with parents, relatives, or other caring adults they know, throughout their dependency cases. On the issue of permanency, children with attorneys from the first hearing onward are more likely to remain with or successfully return to their parents than children without counsel at the start. Yet, the Children and Youth Advocacy Clinic at the University of Washington School of Law found in its 2016 status report, Defending Our Children, that despite a federal law requiring that an advocate be appointed for the child in all proceedings, 23 percent of children in Washington had no appointed advocate in the court hearings that control their lives. This failure to provide counsel effectively silences the children whom the court needs to hear from the most.

Perhaps the only advantage of Washington being near last place nationwide is that we know what the effective solutions are and what steps need to be taken immediately. No long-term studies need to be done. Determining the best interest of children must be done on a case-by case basis and cannot be circumvented through shortcuts of bias and prejudice. Training for volunteers regarding cultural issues, racial bias, confirmatory bias, prejudice, domestic violence issues, incarceration of parents, therapeutic approaches, and effective child-centered representation is woefully inadequate though it should be mandatory for anyone to do this work.

Not all children can be returned to their parents when their health or safety cannot be secured. However, when children absolutely must be separated from their parents through state intervention, that process can occur either with care and thoughtfulness or with unnecessary cruelty. The termination of parent-child relationships must be done in a transparent, legal, and ethical way; yet, now more than ever, it must also occur in a therapeutic manner. We have an obligation to those hardest hit by our system's failings to rebuild our child welfare system with compassion, using the voices of the vulnerable and abused to inform our work.

It is easier to build strong children than it is to fix broken men.
—Frederick Douglass

Keywords: litigation, children's rights, volunteer guardian ad litem, abuse, retaliation, misconduct


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).