State’s guardian ad litem program pressured by caseloads

Susan Koh served in the Peace Corps, later worked at the VA Medical Center in White River Junction as chief of ambulatory care and retired in 2014 from the Cold Regions Research and Engineering Laboratory, where she was a strategic workforce planner.

In 2012, not content to go passively into retirement, she added to her long résumé the position of Vermont guardian ad litem — the volunteer appointed by a family court to represent a minor in legal actions.

Such cases often involve removing a minor from a situation in which there is abuse or neglect but might also deal with custody, abandonment, delinquency or truancy.

The work, said Koh and other guardians ad litem, is simultaneously challenging and gratifying.

For children traumatized by the experience of being removed from their parents and put into foster or state care, it’s important for them to hear from a guardian ad litem, “I’m not here to judge you. I’m here to hear what you have to say,” Koh said.

While an attorney obviously represents a child’s legal interests, guardians ad litem serve a unique and vital function within the family court system in Vermont — and indeed in state courts throughout the country.

They advocate for what they perceive to be the best interests of a child going through an emotionally wrenching, confusing journey into the bureaucracies of both the court system and the Vermont Department for Children and Families.

“A (guardian ad litem) helps a child deal with the fact that there is a court case, and helps create a buffer zone between the child and the litigation,” said Superior Court Judge Thomas Devine, who has presided over family court cases throughout Vermont.

Growing need

Currently, about 1,300 children statewide are in the custody of the Vermont Department for Children and Families, and about 650 are in conditional custody arrangements, according to David Kennedy, an attorney who is manager of the guardian ad litem program in Montpelier. Those numbers tend to fluctuate, Kennedy added.

However, only about 300 guardians are available statewide to represent minors, which is not enough, ideally, to handle the number of cases.

“We’re trying to double the number of (guardians ad litem) required by the Vermont statutes,” said Alicia Connors, the regional coordinator for guardians ad litem in Windsor, Orange and Washington counties, adding that current guardians have stepped up to fill the need, traveling throughout the state when necessary.

In Vermont, the guardian ad litem program is part of the judicial system. Guardians are volunteers who do not receive a stipend, but are reimbursed for mileage and some training expenses.

“There are always more kids who need guardians than we have guardians,” said Maureen Martin, a Hartland attorney who has handled cases on the juvenile docket since 1990.

To remedy that, the guardian ad litem program has placed recruitment ads in local newspapers and posted in online forums, which has resulted in candidates coming in for training.

One of the leading factors in the greater need for guardians is that, in the past few years, more children and families have come through the family court system as a result of substance abuse and addiction to drugs and alcohol. Although there are no hard scientific data yet, Kennedy said, the suspicion is the opioid crisis was a contributing factor to an increase in new cases of children in need of care or supervision coming into the judicial system in fiscal years 2015 and 2016.

In fiscal year 2014, 1,746 new cases were filed; in 2015, 2,004; and in 2016, 2,069, according to Kennedy. But, he cautioned, an increase or decrease of new cases can vary by county, and by year.

The process of getting parents into treatment for substance abuse, and the individual nature of treatment and recovery, also can contribute to the length of time it takes for a case to go through the courts.

“Treatment and recovery are complex, the impact on parents and children is complex. One of the reasons cases are taking longer is that there’s a lot of gray area and people are all trying to do what they can to keep families together within the confines of the law,” Kennedy said.

Other cultural and societal factors come into play regarding the number of families entering the court system, Martin said.

More scrutiny is now given to the issue of children suffering neglect or abuse; social service agencies and courts are quicker to intervene; states mandate reporting by certain categories of professionals, including teachers, counselors, doctors and health care workers; and states bring more resources to bear, Martin said.

“As a society we are less tolerant of permitting a status quo when it comes to children at risk. … When I was growing up, nobody was talking about taking (parents’) kids away from them,” said Martin, who herself went through the family court system in New York state as a toddler in the 1950s before being adopted at age 2.

“Judges and attorneys and guardians and clerks: we all work together to get the best outcome for families that we possibly can,” Martin said.

‘You’re not a buddy’

Koh, who lives in Quechee and has a grown daughter of her own, currently handles 15 guardian ad litem cases, representing 21 children in all, from infancy to age 16. She visits with children regularly to see how they are, emotionally and physically, and talks with their teachers, doctors, parents and relatives to gauge their needs.

Koh regards her role as a mediator between the child and the court system and the Department for Children and Families as critical to the child’s well-being. “Most children want to know what’s happening. They’re curious; it’s their future,” she said.

“You have to have the time and a certain amount of compassion and want to see kids do well. You have to be detail-oriented,” said Matthew Garcia, a Dartmouth College graduate and attorney living in White River Junction who has been a guardian ad litem since 2010.

Garcia is also a member of the Vermont Judiciary’s guardian ad litem oversight committee, and recently founded a statewide nonprofit group, the Friends of Vermont GAL Inc. He has no children of his own, but said he views being a guardian as a way to fulfill the enormous needs of children who have been neglected or abused.

When Brita Hansen signed on in 1992 to become a guardian ad litem, she realized quickly that there was another side to the bucolic nature of the Vermont that she thought she knew. “The cycle of poverty, that’s the frustrating thing. There was an underbelly of Vermont that I had no idea existed. … Sometimes I don’t even want to know what the children know,” she said.

Hansen, a former Woodstock business owner who lives in Quechee, worked with children with disabilities in her native Germany and has two adult children of her own. She is now retired — if you can call supervising 17 cases as a guardian ad litem retired. She estimates she has served in perhaps 300 cases since 1992.

In that time the standards and protocol for serving as a guardian have become stricter, with a greater emphasis on consistent training and professionalism.

“The guidelines are clearer. You’re not a buddy or ersatz mother. You’re not supposed to melt at the sight of a child. You’re supposed to be professional,” Hansen said. Guardians are thoroughly vetted and trained to interview the minors and the adults in their lives, said Connors. They are not permitted to drive children, for instance, or give gifts.

Guardians ad litem are not pressured to side with anyone except the child; it’s the guardian’s independence from the parties involved that makes them valuable, said Connors. Indeed, they shouldn’t be seen as taking sides, and they are not permitted to give information to foster or biological parents.

Because of the obvious time commitment, many guardians tend to be retired, which has its advantages. When younger people straight out of graduate school go into social work, they may have the intellectual knowledge but not always the in-the-field smarts, Connors said. Older guardians have the benefit of years of experience, and they can also act as mentors to guardians just coming into the system.

In an ideal world, Kennedy said, he would not ask any guardian to “take more than five kids or three or four families at a time.” That said, the number of cases a guardian takes is up to him or her, said Connors.

Whatever the number, Kennedy said, the guardians ad litem in the state have done a remarkable job in meeting the demand. “The volunteers have shouldered that responsibility in a way no one could have expected,” he said.

Although the number of new cases coming into the state court system seems to have plateaued, the backlog of cases — and the length of time it can take for a case to go through the courts — still means that the guardian ad litem system is under strain, Kennedy said.

The effect is cumulative systemwide: if the number of cases increase, and also take longer to clear the courts, all parties involved — the families, children, attorneys, judges, guardians, foster parents and Vermont Department for Children and Families workers — shoulder a greater load, he said.

Haunting decisions

Guardians are expected to attend all court hearings pertaining to the child in question, but any testimony or evidence offered by a guardian funnels through the attorney to the judge.

On occasion, Hansen wrote in an email, a judge may ask a guardian a direct question. But that is rare, except in the always difficult cases involving the termination of parental rights, when a judge does ask a guardian for a verbal recommendation based only on evidence produced during testimony in court. The guardian is not permitted to submit any of the information gleaned independently outside of the courtroom.

By far, wrote Hansen, the decisions with the potential to be the most nerve-wracking are the recommendations to terminate parental rights, and to then help determine parental visitation rights.

“You make a decision about a child, and sometimes the mother and father. It haunts you,” Hansen said.

A guardian can make recommendations on questions of temporary and extended custody, visitation, terms of conditional custody, effects of potential school changes and other things, Koh wrote in an email.

But attending court hearings is not where Koh spends the majority of her time. Her focus is on building a relationship with the child and the people around that child, whether they are family, health care or day care professionals, or teachers.

The more information the court has, the better. And the presence of an attorney and a guardian ad litem means “the child is getting a full range of supports by having both, and the court is getting a more complete perspective on what child wants and needs” in the short and long term, said Devine, the Superior Court judge.

Guardians may also serve another function, said Connors. “Research has shown that if a child can have positive role models with other adults, it’s to her benefit.”

Ups and downs

Working as a guardian ad litem has been a bruising lesson in the chain of poverty, abuse and addiction, Koh said.

That said, she added, when she was a child growing up in rural New Hampshire, the problems were there but not discussed as openly as they are today — the wife and mother who would come to church on Sunday with a black eye, or the adolescent boy who was rarely seen without a beer in his hand.

“Becoming a (guardian) is like going through the looking glass and seeing this other culture that you didn’t know existed. Most people have no idea of the extent of it and the conditions people live in, but people with the least are often the most generous. But, it’s very frustrating and demoralizing to know you can’t know or fix everything,” Koh said.

Garcia said that what upsets him almost as much as seeing families torn apart by addiction and abuse is working with women who become pregnant again after a child or children have been removed from their custody, repeating a seemingly endless cycle.

“What are we doing wrong?” he asked.

What has also struck Koh is that some of the children she has represented don’t have a sense of hope that they can effect change in their own lives.

They have all the access to social media, she said, but “they don’t have access to what social media promises, or implies.”

Part of her role, she said, is “to give kids the confidence to know they can deal with things.”
While acknowledging that guardians ad litem aren’t miracle workers, Koh said she believes her work has served to advance the best interests of the child in most of the cases she’s been involved in.

Hansen continues to work as a guardian because she has seen the good that can come from families being reunited, or witnessed children adopted by their foster families.

“I don’t want to be jaded. I want to have this optimism that things can get better. I want to have that outlook. I can’t let go; I have such an interest in this system,” Hansen said.

“The good thing is we’re protecting children,” said Garcia.

Since becoming programs manager, Kennedy has observed that what guardians are “able to do and the difference they’re able to make for children is not like anything I’ve ever seen.”

A constant refrain Kennedy hears when speaking to guardians ad litem is that, for them, satisfaction comes from seeing the resilience of children and families, seeing them become stronger and better able to seize opportunities that come their way.

For her part, Koh plans to continue working as a guardian. “As long as my mind stays sharp and I can drive,” she quipped.

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