Office of Pub. Guardian v. Lund (In re G.J.P.)

Decision Date05 February 2020
Docket NumberNo. 20190733,20190733
Citation459 P.3d 982
Parties IN RE G.J.P. Office of Public Guardian, Petitioner, v. The Honorable Judge Julie Lund, Third Judicial District Juvenile Court, Respondent.
CourtUtah Supreme Court

Sean D. Reyes, Att’y Gen., Stanford E. Purser, Deputy Solic. Gen., Amy Jackson Leach, Asst. Att’y Gen., Salt Lake City, for petitioner

Brent M. Johnson, Salt Lake City, for respondent

Thomas A. Luchs, Cottonwood Heights, for Mother, J.R.

Martha Pierce, Salt Lake City, Guardian ad Litem for G.J.P.

Justice Pearce authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.

Justice Pearce, opinion of the Court:


¶1 The juvenile court appointed the Office of Public Guardian (OPG) as guardian ad litem for a mother (Mother) in a parental rights termination proceeding. OPG did not consent to the appointment and does not believe it is the appropriate entity to represent Mother. OPG filed this petition for extraordinary relief contending that the juvenile court lacks authority to appoint a guardian ad litem for an adult. OPG also contends that, even if the juvenile court has that ability, the court exceeded its discretion by appointing OPG. We grant the petition and afford OPG the relief it seeks. Although the juvenile court possesses the authority to appoint a guardian ad litem for an adult, the juvenile court strayed beyond the bounds of its discretion by appointing OPG in this matter.


¶2 In August of 2017, Mother was admitted to the University of Utah Hospital inpatient psychiatric unit. While hospitalized, she gave birth to G.J.P. G.J.P. experienced problems breathing and eating and was placed in the neonatal intensive care unit. G.J.P. remained hospitalized for several months. After treatment at the University of Utah Hospital, Mother was committed to the Utah State Hospital.

¶3 Soon after the birth of G.J.P., and with Mother still in the psychiatric unit, the Division of Child and Family Services (DCFS) began to inquire what it needed to do to ensure G.J.P.’s well-being. DCFS met with Mother and G.J.P.’s alleged father, both of whom acknowledged, according to DCFS, that they were unable to care for the child. DCFS also attempted to help Mother identify appropriate family to care for G.J.P., but these efforts, along with DCFS’s independent search for family members, did not identify anyone who could raise G.J.P.

¶4 DCFS moved for temporary custody of G.J.P., and the court granted prehearing custody to DCFS. DCFS also filed a stipulated motion to appoint a guardian for Mother. The motion noted Mother’s diagnosis and civil commitment and informed the court that Mother’s counsel did not believe that Mother understood what was happening in the termination proceedings. During hearings on DCFS’s motion, the juvenile court questioned whether it had jurisdiction to appoint a guardian for Mother.

¶5 Meanwhile, the parties tried, without success, to contact Mother’s sister who may have previously served as Mother’s guardian. Eventually the juvenile court granted custody to DCFS, and DCFS placed G.J.P. with foster parents.

¶6 The juvenile court also concluded that it needed to determine if it could order reunification services or if Mother’s illness rendered her incapable of taking part in those efforts. Accordingly, the court ordered Mother to participate in two psychological evaluations. Following the evaluations, Mother’s counsel again moved to appoint a guardian for Mother, noting that her illness "renders [Mother] mentally incompetent to assist in her own defense and communicate meaningfully with counsel." The State did not object. The court found Mother incompetent, granted the motion, and appointed "a public guardian for [Mother]."

¶7 A month and a half later, the juvenile court issued an order explaining the multiple avenues it had explored to find someone to serve as Mother’s guardian. The court reported that the Utah Office of Guardian Ad Litem could not represent Mother because its representation of G.J.P. created a conflict. The court also recited that it could find no relative or friend willing or able to serve. And the court noted that it was unaware of any other mechanism it could employ to identify and appoint an attorney to act as guardian ad litem for Mother. But the juvenile court noted that, under its reading of the Utah Code, OPG could petition or agree to represent Mother and directed that a representative of OPG appear at the next hearing "so that the powers of its office may be further discussed."

¶8 In response to the juvenile court’s directive, OPG argued that it was not a proper entity to represent Mother because OPG’s statutorily defined role is narrow and does not generally include advising or representing individuals in litigation.1 OPG also argued that the juvenile court was not authorized to find a parent "sufficiently incompetent to appoint a guardian for purposes of assistance in litigation." OPG therefore "declin[ed] to file a petition on behalf of [Mother]."

¶9 Mother’s counsel replied and claimed that OPG was not being asked to advise or represent Mother but to serve as guardian ad litem and "make decisions on her behalf which are in her best interest."

¶10 The juvenile court held a hearing where OPG reiterated its concerns. Despite those concerns, the juvenile court ordered OPG to "represent" Mother.

¶11 OPG moved to set aside the juvenile court’s order, arguing again that the juvenile court lacked jurisdiction to appoint a guardian for an adult. The court denied the motion reasoning "[t]here is no person available to serve as a guardian for her" and "[t]he Office of the Public Guardian can provide a person to serve as a guardian for [Mother]."

¶12 OPG filed an interlocutory appeal of the order of appointment, and the termination proceeding was stayed. The court of appeals certified the appeal to this court. Upon its arrival at this court, we dismissed the petition because a non-party may not file an interlocutory appeal, but we did so with leave to refile as a petition for extraordinary relief. OPG then petitioned for relief. The court of appeals certified the petition to this court.


¶13 A person may petition for extraordinary relief on any of the specified grounds under rule 65B of the Utah Rules of Civil Procedure only when "no other plain, speedy and adequate remedy is available." UTAH R. CIV. P. 65B(a). "This court has broad discretion to grant or deny extraordinary relief." Gilbert v. Maughan , 2016 UT 31, ¶ 14, 379 P.3d 1263. In deciding whether to grant a petition we may consider the "egregiousness of the alleged error, the significance of the legal issue presented by the petition, the severity of the consequences occasioned by the alleged error," or any other relevant consideration. State v. Barrett , 2005 UT 88, ¶ 24, 127 P.3d 682.

¶14 Whether the juvenile court has authority to appoint a guardian ad litem presents a question of law. We review questions of law for correctness. See State v. Moreno , 2009 UT 15, ¶ 7, 203 P.3d 1000. And we review the juvenile court’s decision to appoint a specific guardian ad litem for an abuse of discretion. See Hanson v. La Flamme , 761 F. App'x 685, 689 (9th Cir. 2019) (applying an abuse of discretion standard to review trial court’s decision of who would serve as guardian ad litem); Gardner by Gardner v. Parson , 874 F.2d 131, 139 (3d Cir. 1989) (same).


¶15 Before we address the questions OPG presents, we need to highlight an issue that raises serious concerns meriting further exploration. No one has directly challenged whether the appointment of a guardian ad litem in these circumstances violates Mother’s due process rights.2 But the guardian ad litem representing G.J.P. raised important questions about this issue.

¶16 Citing federal case law, the guardian ad litem argued that Mother would be entitled to a hearing if the purpose of the guardian was to override Mother’s legal decisions. We understand the concern. The juvenile court’s order was somewhat vague on the proposed role the guardian ad litem would play, and that left room for G.J.P.’s guardian ad litem to legitimately worry that the court had authorized the proposed guardian ad litem to make Mother’s decisions for her. In addition, Mother’s counsel made repeated references in briefing and oral arguments to the proposed guardian ad litem making decisions for Mother. See supra ¶ 9. Although these concerns lurked amidst the arguments—as did a concern that not appointing someone to assist Mother would also violate her due process rights—OPG’s petition does not ask us to address these due process questions.

¶17 We can see the substantial and important questions that may be implicated by the juvenile court’s decision to appoint a guardian ad litem, but they are difficult to address in the abstract. The calculus could change if the juvenile court envisioned a guardian ad litem who would "sit next to [M]other and answer her questions," as OPG asserts the juvenile court explained at one point, instead of a guardian ad litem expected to, as Mother’s counsel asserted, make Mother’s decisions for her. The power of a guardian ad litem, depending on how the role is defined, may have significant effects on an incompetent person’s rights and the due process that should be afforded before a court infringes those rights.

¶18 Courts have recognized that "[t]here is something fundamental in the matter of a litigant being able to use his personal judgment and intelligence in connection with a lawsuit affecting him, and in not having a guardian’s judgment and intelligence substituted relative to the litigation affecting the alleged incompetent." Graham v. Graham , 40 Wash.2d 64, 240 P.2d 564, 566 (1952). Indeed, the Fifth Circuit has held that declaring someone incompetent and appointing a guardian ad litem implicates a "protected liberty interest" and the due...

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