This blog was written by Melinda L. Drewing and Flint Stebbins, in collaboration with Adam Ballout and ABC Law Group, LLP.

Most people don’t associate the phrase Guardian ad Litem (GAL) with perjury, theft, fraud, retaliation, and bias so severe that a GAL would place a child’s physical well-being at risk. Maybe now they should. After nearly a year of litigation, court findings were made against several Snohomish County Volunteer Guardians ad Litem (VGALs), paid staff of the Snohomish County VGAL Program (the Program), and at least one Program attorney in a child welfare case in Everett, Washington. Guardians ad Litem and the Program that recruits and manages them were excoriated by a Superior Court judge for those transgressions as well as a series of strategic moves systematically applied by the Program. A strategy so corrupt that it constituted abusive litigation tactics (including an 8,000-page document dump), supplying false information to the Court, concealing and destroying evidence of their misconduct, and retaliating repeatedly against defense attorneys. During this lengthy litigation the Program’s actions led to countless continuances of hearings, delays, and tacit refusals to comply with Court orders, none of which was in the best interest of the child. This Program demonstrated its priority was to protect its own interests even at the expense of the child it was appointed protect. This leads one to question whose best interests are actually being advocated for.

Guardians ad litem are appointed by the Court in child welfare cases to make recommendations on what he or she believes is in the child’s best interest after conducting an independent investigation of the facts of the case, meeting with all the parties and participating in at least monthly visits with the child. The purpose behind the Volunteer Guardian ad Litem is to make sure the court would know as much as it could about the long-term welfare needs of each child in a dependency case, where the court is very often charged with attempting to predict the future. Implementation of this concept on a scale as large as the courts needed was cost-prohibitive unless the courts could rely on volunteers to perform this task. In 1984, the National CASA Association (NCASAA) opened its office in Seattle and began providing funding to start new CASA programs. Today there are over 75,000 CASA volunteers across the United States. Washington State has 2500 |PLUS| volunteer CASAs.

The Snohomish County Volunteer Guardian ad Litem Program consists of approximately 7 Program Coordinators who supervise volunteers, numerous support staff, 2 or 3 County officials who manage the Program, and two staff attorneys who, all together, have created a sophisticated organization designed for the highly complex task of child welfare litigation. Impressively, this organization has, over a number of years, recruited more than 300 individuals and cultivated in them a willingness to commit what can be the equivalent of part-time to full-time hours at no compensation. With little to no public understanding of the child welfare system, the Program must educate their volunteers on even the most basic tasks and language of the process. This is done through an initial 3-day training and on-going training which is supposed to include education regarding the state Guardian ad Litem Rules and the Program’s own policy.

The typical demographic is that of an older (often retired) upper-middle class white woman. It is not unusual for volunteers to have had some introduction to the child welfare system in their past, including as foster parents themselves. Among the requirements to become a Volunteer Guardian ad Litem are background checks to ensure they have no criminal or CPS history. In contrast, the system is nearly exclusively populated by parents with criminal history, substance abuse and mental health issues, but most commonly, families mired in poverty. These parents are not always likeable and are understandably distrustful of most everyone in the process.

However, reunification and preservation of families is what the Dependency system is designed to do and those responsible for supervising these volunteers should be ensuring that this is what is occurring whenever possible. Or at the very least when VGALs recommend termination of parental rights, which they commonly do, such recommendations are made within the scope of the law.

It is easy to see how these volunteers would struggle with the notion of returning a child to one or both of those parents when the VGAL has observed and, not infrequently, become enmeshed with a foster family that appears to be a better alternative to the biological family. In fact, it would be difficult to see how they would not take that view. What appears to have occurred is, in an effort to maintain volunteer interest and commitment to do this time-consuming, emotionally wrenching work, volunteers’ judgment and biases were not being subject to scrutiny, actions beyond the limits of their authority seemed to be encouraged, and misconduct was systematically excused and covered up under the guise of protecting the child’s best interest.

Unsurprisingly, this led to an attitude that volunteers were incapable of bias, misconduct, or retaliation. This created a dangerously exaggerated sense of self-importance and infallibility. In order to maintain this façade, the Program deliberately disregarded, whitewashed, or concealed countless warning signs. The misconduct and violations of Statewide GAL rules by those in this case was not new nor is it likely they were unique to this county. What sets this case apart is that the behaviors became so blatant that the Court was unable to ignore the violations or dismiss them as a minor transgression by a volunteer who meant well but didn’t know any better. This Court, in an unprecedented move, completely disregarded the GAL’s trial testimony. Through the diligence and zealous advocacy of the mother’s two defense attorneys and their law firm the case could finally be made that not only were the GAL Program and its volunteers capable of committing these violations but that there was a long standing pattern of these behaviors extending well beyond this one case.

The catalyst for these findings was a termination trial that occurred in August 2015. In addition to presenting the mother’s case that she had adequately remedied the alleged parental deficiencies, the defense sought to highlight what appeared to be coordinated efforts between the GAL, foster mother, and the foster mother’s adoption agency social worker to sabotage any reunification of this child with her mother so that the child could be adopted by her current foster family. The mother’s attorneys scrutinized, on cross-examination, the GAL’s recommendation to terminate the parents’ rights, and the actions of both the VGAL, who passed away 7 months before the trial, and the VGAL’s supervisor, who was appointed upon her own request as the replacement GAL after the VGAL’s death.

This evidence demonstrated the widespread misconduct by the VGAL and the replacement GAL. Much of that misconduct involved the VGAL’s improper interactions with the child’s foster family – providing the foster mother and her adoption agency social worker with the parents’ confidential medical, mental health, and criminal records as well as discussions and commitments made by the VGAL about limiting the mother’s visitation and ensuring that these visits would not be expanded or liberalized. The actions of this VGAL became so insidious that the Court found that the child’s physical well-being was put in jeopardy in an effort to manufacture evidence against the parents and that the VGAL and the Program had acted contrary to the child’s best interests. The mother’s counsel proved that the VGAL’s actions were intentional and that the VGAL knew of the wrongfulness of those actions, which was demonstrated by evidence that the VGAL began utilizing her home email address (itself a violation of VGAL policy) to prevent her actions from being traced.

The evidence further established that the VGAL’s supervisor/replacement GAL, had knowledge of at least some of the prior VGAL’s misconduct. Despite this knowledge and a GAL Rule requiring disclosure to the court and all parties of even “potential improprieties” by a GAL, she did not disclose it, but deliberately concealed and even destroyed evidence of the misconduct and evidence demonstrating her knowledge of that misconduct. This Program official was found by the court to have engaged in her own misconduct and bias before, during, and after the trial and that the GAL lacked candor to the court and that her testimony was uninformed, inconsistent, dishonest and biased. Despite these issues, the Court terminated the parents’ rights in September 2015.

Following the Court’s findings regarding this misconduct, the mother’s attorneys submitted a formal complaint with the Program against the GAL. This administrative complaint process must be pursued prior to a motion on these issues being brought before the court. The Program has 5 days to make an initial determination on the complaint, but instead indicated their determination would be made sometime within 60 days. The mother’s attorneys quickly filed a motion to remove the GAL for cause with the Court.

In response, the VGAL Program and Snohomish County Superior Court Administration went on the offensive against mother’s counsel and their firm. The Program’s very first action upon receiving the complaint against the GAL was to contact the State Office of Public Defense, the contracting financial agency of the mother’s counsels’ firm, to arrange a meeting to discuss “significant issues that have arisen” with that firm. Given that the Program, at that point, had made no investigation into the merits of the complaint and certainly knew about the Court’s findings, this was clearly an attack on the firm for making the complaint against the GAL. Two months later, the Program concluded that the complaint against the GAL was “unfounded.”

More retaliation followed. After the trial, nearly the entire dependency defense bar in the county joined the mothers’ counsel in signing a letter to the Program expressing concerns about that GAL remaining on active cases. This letter revoked releases of information to that VGAL supervisor in light of her failure to protect parents’ confidential information, her concealment of such egregious misconduct, and her involvement in efforts to manufacture evidence against parents. Instead of dealing with the GAL misconduct, the Program’s response to this letter was to terminate the contract of a VGAL contract attorney who signed the letter. The court later found that the Program intended to send the message to the mother’s counsel and other defense attorneys that if they opposed the Program or acted in solidarity with the mother’s counsel’s firm, they too would be retaliated against.

The Program also attacked mother’s counsel in court alleging CR 11 violations in the mother’s motion to remove the GAL. The Program brought motions to redact and strike portions of the mother’s pleadings, arguing that there was no factual basis supporting the assertions of misconduct made. Later, Superior Court Administration filed a motion for the Court to reconsider the findings related to the VGALs and the Program itself. The Program also had the Civil Division of the County’s Prosecutor’s Office write the mother’s attorneys a letter threatening to sue them, asserting that just by making reference to misconduct by the Program occurring outside this case, mother’s counsel violated the confidentiality rules that the program itself was found to be violating in every instance that the rule was implicated.

Subsequently, the mother’s attorneys brought a motion to vacate the court’s trial judgment arguing that the GAL’s and the Program’s failures to investigate, document, disclose, or correct any of the prior and ongoing misconduct of the VGAL and GAL deprived the parents of a fair trial and so severely undermined the reliability of the court’s decision, that it should not stand. A seemingly endless series of post-trial hearings commenced as the defense demonstrated the extent of the VGAL misconduct while the Program scrambled to cover its tracks with little concern to the child’s need for permanency and a quick resolution.   

During this stage of the litigation, the mother’s attorneys produced evidence of improper and illegal infiltration of a Defense Attorney LISTSERV through the Washington Defender Association (WDA) by another Snohomish County VGAL, on an unrelated case, for almost five years. The information she accessed on the LISTSERV was disseminated throughout the program and used on at least one occasion by one of the Program’s attorneys. This incident was also offered to further demonstrate the Program’s pattern and history of deceptive tactics and lack of fair dealings with those who oppose them.

The VGAL’s presence on the LISTSERV was first uncovered during a discovery conference in May of 2015 with a VGAL Program Attorney and an Assistant Administrator for the Program on the unrelated case. During the meeting, the opposing counsel alluded to knowledge of the defense firm’s unfiled Motion to Compel discovery and efforts to obtain information from defense attorneys in other counties on their experiences obtaining discovery from their VGALs/CASAs. This information, including a draft of the unfiled motion, was posted on the Defense LISTSERV which the VGAL saw and immediately provided to the Program. This motion stemmed from the firm’s longstanding difficulty with obtaining meaningful and timely discovery from the Program.  A complaint was filed against that VGAL for those actions. The complaint was summarily dismissed by the Program as having “no potential merit.”

The court viewed the LISTSERV infiltration as part of a pattern of conduct of a lack of fair dealings by the Program and found that that VGAL committed perjury in her explanations of how and why she got on the LISTSERV and what she did with the information she had access to. The Court found that the VGAL’s presence on the WDA LISTSERV was at least in part “to surreptitiously gain opposing counsels’ thought processes on cases and strategies and to surveil conversations between opposing counsel relating to dependency case strategy.”  The Court added that the Snohomish County VGAL Program, its lawyers and the VGAL had a very clear, well established ethical duty to not read the confidential e-mails when they saw what was contained in them.  Ethical duties which required them to advise defense counsel about them, return them, and to not use them for strategic purposes. They failed to comply with these ethical duties, but instead the VGAL secretly maintained her presence on the LISTSERV for more than 4 years and disseminated materials she accessed throughout the program.

In presenting evidence and testimony on the LISTSERV infiltration and the Program’s refusal to take any action on it, another issue that became apparent was that the VGAL program’s standard practice for handling complaints was to immediately violate a rule requiring that complaints be kept confidential from the VGAL. Instead, its practice appeared to be for the Program to immediately notify the VGAL or GAL that a complaint had been filed against them and by whom. Somewhat unsurprisingly, under this practice, throughout the entire history of the Program not a single complaint was ever found to have merit. Worse, complaining parties were often subject to bias and retaliation after submitting a complaint.

On June 10, 2016, more than ten (10) months after the original trial date, all parties returned once again to Superior Court to hear whether the parents’ motion to vacate the verdict would be granted. The motion was denied.

While the Court determined both the VGAL/GAL should have been removed for cause as a result of multiple violations, she concluded that those violations and the transgressions committed by the VGAL Program did not prevent a fair proceeding or affect the outcome of the trial, as required to satisfy CR 60. Significant in this decision was that the Court already gave no weight or consideration to the GAL’s testimony at trial. The parents are likely to appeal. However, as no current case law exists addressing the issue of misconduct of a Guardian ad Litem and termination of parental rights it is unclear how the parents will fare on appeal.

Despite not vacating the trial judgment, the Court made dozens of scathing findings against the Program and most importantly the Court found that “The misconduct by the Guardian ad litems seriously jeopardized the finality and permanency for this child, directly contrary to the best interest of the child.” As a result, the Court granted sanctions in the form of attorneys’ fees, education requirements, and public notice for any bad faith litigation abuses that are found. The precise details of these sanctions will be determined in a hearing to occur later this year.

The injustice to this family of the Program’s efforts to rig the process against them is heart-wrenching and is something that will likely haunt the attorneys – who have fought this case so hard – for the rest of their careers.  But it is also what will inspire those involved in this area of law to continue to fight in this broken system on behalf of parents who are justifiably terrified that their children will be forever lost to it. While it may seem that there would be a sense of vindication in finally having the Court acknowledge these practices within the Program, any satisfaction in that sense is grossly overshadowed by the question of how many past clients lost their cases and their children because of the Program’s long success in concealing their misconduct.

After almost a year of litigation, it is still shocking, even to jaded defense attorneys that people who they worked with on a regular basis, could have engaged and continues to engage in actions that are not only legally but ethically wrong, but especially doing so under the guise of advocating for children. The court opined that such acts by an arm of the court impacts the appearance of fairness as to our entire county court system. She indicated that it would be impossible to measure how and to what extent retaliation against a small firm in such a small legal community would affect the willingness of all parents’ attorneys to zealously advocate to protect their client’s constitutional rights to raise their children. She left all parties with the strong message that when VGALs retaliate, they are placing their personal passions for revenge ahead of the needs of any children whose best interest they are supposed to protect.

Very little has changed since these findings have been made and, if anything, the situation has almost gotten worse as families’ cases have been consistently delayed as a result of the turmoil within the program. There has been no accountability or remorse shown by any of the individuals involved. Without this accountability it will be almost impossible for the system to move forward and to make the changes necessary to ensure that these abuses are never repeated.

The therapeutic nature of the dependency process often leads to an implied culture for all parties to work cooperatively for the betterment of the family. While good in theory this practice can present serious issues when it comes to protecting the parents’ and children involved in this process as it can affect defense attorneys’ ability to make challenges to the system. Backlash from other parties or a lack of support from the bench further helps to ensure that the status quo is maintained.

For years our office has struggled with the Program’s ability to skirt accountability, cause unnecessary continuances and delays in our clients’ cases, operate outside of their legal role and engage in questionable behaviors during its investigations with little to no consequences. Dependency defense attorneys are already working with a stacked deck. Statute, case law, the Court, Assistant Attorney Generals, the Department of Social and Health Services Social Workers, Guardians ad Litem, and Foster parents are all purportedly working to advance the “best interest of the child.” It seems insane that one would still feel the need to operate outside the law in order to achieve what the system is designed to achieve.

These findings were long overdue, particularly when some of the actions taken by the aforementioned VGALs and the Program took place over a year ago, and is exemplary of the underlying problems within Washington State’s child welfare system and the struggles that defense attorneys advocating for the parents face within it. While it appears that the County may now finally be listening, the actual impact that this may have for our clients and their families is yet to be seen.