Fox v. Wills

• Decision Date: 06 May 2003
• Docket Number: No. 01075,01075
• Citation: 822 A.2d 1289,151 Md. App. 31
• Parties: Katherine Rose FOX, a minor, v. Vincent WILLS.
• Court: Court of Special Appeals of Maryland

822 A.2d 1289

151 Md. App. 31

Katherine Rose FOX, a minor, v. Vincent WILLS.

No. 01075, Sept. Term, 2002.

Court of Special Appeals of Maryland.

May 6, 2003.

Elizabeth L. Ritter, Chevy Chase, for appellant.

Christopher Thomas Stidvent, Clarissa Hodges and Baker, Botts LLP, Washington, DC, for amicus curiae, Justice for Children.

William Brockman, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, and Julia M. Andrew, Assistant Attorney General on the brief), Baltimore, for appellee.

Argued before DEBORAH S. EYLER, GREENE and SHARER, JJ.

GREENE, Judge.

Katherine Rose Fox, appellant, seeks review of the July 17, 2002 Order of the Circuit Court for Montgomery County, dismissing her Complaint for malpractice against Vincent Wills, appellee.

Appellant raises one question for our review, which we have separated into two questions and rephrased:

I. Does a guardian ad litem owe a duty to his/her minor client, such that he/she could be subject to malpractice liability?

II. Is a guardian ad litem entitled to some form of immunity from suit?

We hold that guardians ad litem enjoy immunity for the exercise of their "judicial functions," including testifying and making reports and recommendations to the court, and that the guardian ad litem in this case was performing judicial functions and is protected by immunity. In light of our answer to the immunity question, we do not find it necessary to answer whether a guardian ad litem owes a legal duty to his or her child clients.

FACTS

Appellant is a minor child¹ whose parents were engaged in divorce proceedings in the Circuit Court for Montgomery County, in the case of Fox v. Fox, No. 178504-V. Appellee is an attorney who was appointed by the court in that case to be the Nagle v. Hooks² attorney, and later, to be the guardian ad litem for appellant. The instant case arose when appellant's mother, Elizabeth Ritter (Ritter), filed a Complaint on February 22, 2002, on behalf of appellant against appellee for legal malpractice.

Ritter alleges, in pertinent part, that appellee:

[F]ailed to prevent (by ensuring that court-required visitation supervisors adequately perform their duties as required by the court) an incident of child sexual abuse, failed to investigate the allegations of abuse, failed to report such abuse to Child Protective Services, and tried to suppress investigation on the incident at trial in this matter.

* * *

[Appellee], even though he was made aware repeatedly that visitation supervisors were not adequately performing their duties and were leaving [appellant] alone with her father, failed to take any appropriate measures to ensure [appellant's] safety during visitations. [Appellee] failed to investigate the additional instance of child sexual abuse.... By his actions, [appellee] successfully kept the court from full and [sic] adjudication of all allegations of child sexual abuse in this matter.

* * *

Throughout the course of his appointment as guardian ad litem, [appellee] has shown continuing and unaccountable bias in favor of [appellant's] father in this matter, which has prevented [appellee] from adequately representing [appellant's] interests and assuring her safety during visitations.... [Appellee] vigorously objected to Dr. Rosenberg's expert opinion regarding supervision being considered by the court, and was successful in his efforts to keep the court from considering Dr. Rosenberg's recommendation regarding supervision, and was adamant in repressing circulation of this report.

[Appellee] was aware of the contents and recommendations of a lengthy report by another court appointed evaluator, Susan Ward, in which Ms. Ward voiced serious concerns about [appellant] being alone with her father, about [appellant's] father's serious psychological issues, including sexual and sadistic issues, her concerns for [appellant's] safety if left alone with her father, and her recommendation of extremely limited (two to four hours a week) of [sic] visitation with [appellant's] father. [Appellee] attempted to suppress this report from being provided to Dr. Rosenberg in a subsequent evaluation.

* * *

[Appellee's] bias in favor of [appellant's] father has kept him from actively pursuing numerous breaches of duty by supervisors and conduct by [appellant's] father inimical to her emotional and physical welfare, including, but not limited to:

* leaving [appellant] alone with her father, even after being adjured by a judge of this court that [appellant] was not to be left alone "even for a moment" with [appellant's] father;

*failing to address the issue of [appellant's] father from [sic] showing [appellant] a book with "pictures of little boys penises" and discussing circumcision with [appellant];

*failing to ensure that supervisors require that [appellant] be appropriately placed in a car seat when transported during visitations, even after an order form this court requiring the same;

*failing to address the issue of [appellant's] father engaging in inappropriate "touching" games with [appellant], for example, one supervisor reported that [appellant's] father put [appellant's] legs around his neck and pulling [sic] [appellant's] dress over her head;

*failing to address numerous reported incidents of [appellant's] exhibitions of anger toward [appellant's] family members in front of [appellant].

* * *

In addition, [appellee] failed to talk with any members of [appellant's] mother or [appellant's] father's families about this case, despite numerous requests by members of both families that they be permitted to speak with him and express concerns about [appellant's] safety and about [appellee's] failure to protect [appellant's] best interests.

Appellee filed a Motion to Dismiss the complaint, and on June 24, 2002, the court heard argument on the motion. On July 17, 2002, the court granted appellee's motion and dismissed the complaint, with prejudice. Ritter timely noted this appeal.

DISCUSSION

It is helpful to the resolution of the case at bar to mention the varying roles of attorneys appointed to represent children and the scope of each of those roles. The Court in Leary v. Leary, 97 Md.App. 26, 40, 627 A.2d 30 (1993), citing a report by the Counsel for Kids Subcommittee of the Maryland State Bar Association Family Law Section, noted that there are different roles that counsel for a child can fulfill: (1) Nagle v. Hooks attorney;³ (2) Guardian ad litem; and (3) investigator.⁴ In Leary, we also noted:

Each one of the roles that an attorney for the children can assume may lead to an inherent tension between the attorney's role as advocate for the child and his or her duty to the court. In some cases, this may lead the attorney perilously close to violating the Model Code of Professional Responsibility.

Leary, 97 Md.App. at 40, 627 A.2d 30.

Later in the opinion, we noted that there are actually four different roles an attorney appointed to represent a child can fill: "waiver, pure representation, pure investigation, or a combination."⁵ Id. at 45, 627 A.2d 30.

There is no dispute that appellee in the case at bar was appointed initially as a Nagel v. Hooks attorney and later as a guardian ad litem⁶ for appellant in her parent's custody case, Fox v. Fox, No. 178504-V. Therefore, a more detailed description of the role of a guardian ad litem follows.

Role of Guardian Ad Litem

In Leary, the father argued, among other things, that the court erred by failing to instruct the children's counsel as to her duties and that the court's error was "further magnified by counsel's failure to represent her clients adequately." Id. at 31, 627 A.2d 30. In answer to appellant's contention in Leary, we noted:

Mr. Leary complains that "[d]ue process requires that the parties know precisely what the role of child counsel will be from the time of his or her appointment, in order to properly prepare for, and respond to, the evidence child counsel will present." The short answer is that Mr. Leary failed to ask for such instruction when the judge stated that he was going to appoint counsel, failed to object that no specific instruction was given after counsel was appointed, and failed to object to lack of instruction when counsel testified. The more relevant answer is that, regardless of whether appointed counsel was properly instructed, she did in fact provide the trial judge with what he needed.

Id. at 39, 627 A.2d 30.

We also noted that

the trial judge did not enter an order stating the purpose for the appointment [of counsel for the children]. While it would have been preferable for him to have done so, we do not conclude that the omission in this case was fatal.

* * *

Ms. Coates's role as counsel to the children was clearly designed to assist the trial court in finding the children's preferences and to determine whether the expressed preferences were properly motivated.

Id. at 46, 48, 627 A.2d 30.

The Court in Leary noted that there appear to be two schools of thought regarding the role of the guardian ad litem: "one school holds that the child's preference is but one fact to be found, while the other maintains that without full advocacy of the preference there would be little reason to have a child's representative at all." Id. at 42, 627 A.2d 30 (citing Note, Lawyering For the Child; Principles of Representation in Custody and Visitation Disputes Arising form Divorce, 87 Yale L.J. 1126, 1141 (1978)). The Court also noted that the attorney for the children in that case

was not acting strictly as an advocate of their position, but as a conveyer of their preferences, which she concluded were not improperly motivated. In other words, the circumstances forced her to take the middle ground between advocacy and fact finding.

Id. at 50, 627 A.2d 30.

In short, the attorney's role was a combination of attorney as advocate and attorney as investigator—a fitting description of what the typical guardian ad litem is intended to do.

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