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Court Determines Whether Legal Guardians Acted in Good Faith


Sometime in August 1987, a child (the subject child) who was then 5 years of age was brought by her mother, the plaintiff, to a certain hospital with complaints of constipation and occasional bloody stools. Defendant A, a doctor, examined her in the presence of another doctor, B, and suspected sexual abuse. A New York Family Lawyer said this was then reported to the Bureau of Child Welfare. Thereafter, the child was taken from her parents’ custody, remained in the hospital for two weeks, and was ultimately placed in the care of her maternal grandmother.

Consequently, the City filed a sexual abuse petition in Family Court of Bronx County. The Legal Aid Society, and its staff attorneys (the Legal Aid defendants), were assigned as the law guardian for the child. The parents denied involvement in any sexual abuse. On 15 December 1987, the court held a fact finding hearing. The law guardian took the position that the physical findings were inconsistent with the explanations offered by the parents and were consistent with sexual abuse of the child. The court found, by a preponderance of the credible evidence, that the child was sexually abused. On 23 June 1986, after a dispositional hearing, the court placed the child with the Department of Social Services for 18 months. Eventually the child was returned to her parents’ custody.

A New York Custody Lawyer said the parents sued, in their own right and as the parents and natural guardians of the subject child. On the first cause of action, on behalf of the subject child, the parents alleged legal and medical malpractice. They claimed that the Legal Aid defendants should have called C, also a doctor at the hospital, to testify at the fact finding hearing; that C had dealt with the parties and had concluded, without a physical examination of the child, that there was no sexual abuse; that C did testify at the dispositional hearing; that the hospital and its doctors committed medical malpractice by misdiagnosing the case and by submitting an erroneous report of sexual abuse; that the City and its attorneys, the defendants, prosecuted the matter in the Family Court to which they too failed to subpoena C. On the second cause of action, plaintiff mother filed it against her attorney in the Family Court, D. On the third cause of action, plaintiff father filed it against his attorney in the Family Court, E.

The Legal Aid defendants moved for a summary judgment on the grounds that plaintiffs failed to state a claim for malpractice. The hospital, A and B, together with two other doctors, E and F, who had examined the child at the hospital (the hospital defendants), also moved for a summary judgment, or cross moved, on the ground that they are immune from a suit for reporting acts of sexual abuse.

A Nassau County Family Lawyer said it is undeniable that the outrage of sexual abuse of minors and the equally outrageous false allegation of sexual abuse are both increasingly common, but can hardly be called routine. The case at bar is a complex legal and medical malpractice case which arose out of a routine charge of sexual abuse litigated in the Family Court.

On the motion filed by the legal aid defendants, this required the court to determine an issue of first impression: the standard under which legal malpractice actions can be brought against law guardians. In order to reach a determination, the court must first examine a number of issues as to the role of law guardians in the Family Court.

Law guardians are essential to the functioning of the Family Court and serve vital roles in all types of cases in that court and in Supreme Court matrimonial and custody cases. Yet, a Nassau County Custody Lawyer said there is, and has been, no clear definition of the role of a law guardian. Courts have ruled that a law guardian’s role in a child protective proceeding not only includes serving as counsel and advocate for the child, but also encompasses aiding the court in arriving at an appropriate disposition. A law guardian may attempt to persuade the court to adopt that position which, in the law guardian’s judgment, would best promote the child’s interest. The hybrid nature of the law guardian’s role requires that in some cases liability for improper conduct be viewed under a standard different from that applicable to counsel for a party. A proper standard must serve two roles: protect infants from malpractice and improper conduct, and protect law guardians from litigants’ challenges of their proper exercise of discretion. It must be noted that, in a legal malpractice case, the plaintiff must prove the existence of an attorney-client relationship, negligence by the attorney, the proximate cause between the negligence and the loss sustained, and actual damages. That standard properly protects the clients when attorneys deviate from the appropriate standard of care and protects attorneys in their exercise of professional judgment. That may well be an appropriate standard to apply to a law guardian in a case where the predominant role of the law guardian is that of counsel. For example, when a law guardian is defending a delinquency proceeding or is representing an older child in a neglect proceeding the usual legal malpractice standard of care adequately properly protects the parties. However, when a law guardian is serving in a predominately guardian ad litem role, a different result should follow. People who exercise discretion and make value judgments in the best interests of their ward must be protected from needless collateral litigation which would undermine their good faith efforts. Children who are incapable of intellectually expressing their views require that law guardians exercise independent judgment on their behalf. In order for that judgment to be truly independent, the law guardian must not be threatened by the possibility that differences of opinion with the infant’s parents may give rise to tort litigation. This is based on the fact that the threat of even a baseless suit may serve to intimidate law guardians who should properly take aggressive positions adverse to the parents of the child.

Here, it calls for a deviation from the ordinary rules governing legal malpractice to protect the law guardian’s exercise of discretion. The parents sue on the infant’s behalf as parents and natural guardian of their child. The result is that plaintiffs seek to avoid the rule barring an action in their name in the guise of suing on their child’s behalf. The complaint is couched in the traditional language of a legal malpractice case. However, the substance of the claim is not really that the law guardians violated the standard of care of lawyers representing a client but that the law guardians improperly exercised their judgment in determining what the best interest of the child was. The court then concluded that the proper standard where there are very young children, and the guardian ad litem role predominates, is that liability should attach only if there is a showing that the law guardian failed to act in good faith in exercising discretion or failed to exercise any discretion at all. In some cases it may be difficult to determine which role of the law guardian predominates. The court need not resolve that question in this case since the guardian ad litem role clearly predominates here. In a proceeding under Family Court Act Article 10, the law guardian is representing the abused not the abuser. The law guardian’s role as counsel for the victim is substantially reduced while the guardian ad litem role predominates. The law guardian is required to take an independent position based on an evaluation of the best interest of the child. That role, as demonstrated here, will often be at odds with the position of the allegedly abusing parents. A test which looks solely at the law guardian’s good faith protects the law guardian’s exercise of that independent judgment which is implicit in a role which requires acts in another’s best interest. Indeed, the Family Court has used good faith as the standard for evaluating the acts of the Commissioner of Social Services. The usual legal malpractice standard is simply inappropriate for law guardians acting as guardians ad litem. The usual standard places emphasis on the technical competence of counsel under the standard of care of attorneys and ignores the discretionary judgmental aspects of a law guardian’s role. The usual malpractice standard places a law guardian, at least for a very young child, at substantial risk of the ultimate court decision. That is contrary to the strong public policy requiring a law guardian to exercise good faith in reaching an independent position on the child’s behalf.

Under the circumstances in the case at bar, a malpractice suit should not be allowed. Based upon plaintiffs’ allegations, the law guardian needs the additional protection of the good faith standard. It is unconscionable to permit a parent who has been found to have been involved in the sexual abuse of a child to sue for damages allegedly caused to the child because the court found an 18 month placement to be appropriate. Plaintiffs’ position turns the Family Court proceeding on its head.

Plaintiffs would penalize the lawyers, not the parents involved, for the alleged injury to the child resulting from the parents’ acts. To reiterate, a law guardian must be able to function independently and to advocate successfully the position that a child should be removed from parents where sexual abuse has occurred without fear of a damage action by those parents.

As a rule, the traditional malpractice standard requires a jury trial of the issues. However, here, the law should not permit a jury trial on a malpractice claim of the type alleged; rather, the Appellate Division, alone, should review a Family Court decision. Moreover, the result sought by plaintiffs is also contrary to the very purpose of the child abuse laws. As a judge once noted in his speech, the neglect and abuse laws are not adversarial; they are child protective, and they seek to advance and promote the best interests of the child. The test of a law guardian’s good faith, as with a trustee’s, turns on whether, on the facts as they were known at the time, judgment was reasonably exercised. A wisdom developed after an event, and having it and its consequences as a source, is a standard no man should be judged by. The courts look at the facts as they existed at the time of their occurrence, not aided or enlightened by those which subsequently take place.

In the instant case, the affidavits clearly failed to assert either that the law guardians did not act in good faith or that they failed to exercise discretion. Rather, plaintiffs’ expert opined on the law guardians’ poor judgment of failing to call C. The question that the action was brought upon was really based on a disagreement over whether all witnesses, favorable or hostile, should have been called. The proposed correct behavior suggested by plaintiffs deprives the law guardian of discretion and creates a new role for the law guardian, that is, a cross between a prosecutor and defense counsel for the allegedly abusing parents. But then again that is not one of the roles created by Family Court Act. The child needs the protection of a guardian to express a totally independent view, not an attorney who merely calls every possible witness in the hope that it might help the parents’ view of the case. Nevertheless, the parents’ counsel could have called the same witness. The rule is that an adverse party may not sue the adversary’s attorney for malpractice. Thus, the parents’ suit as plaintiffs in their own name against the legal aid defendants failed under any standard.

With regard to the motion field by the hospital defendants, it is far simpler. Notably, a report of suspected child abuse or malpractice was sent to the Department of Social Services pursuant to Social Services Law. Under the Social Services Law, a person filing a report shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions. Immunity attaches when there is reasonable cause to suspect that the infant might have been abused and when the party so reporting has acted in good faith. Here, defendants have clearly showed that there was in fact a reasonable cause for the suspicion of abuse. It was evident from the medical records presented that there were suspicious rectal and vaginal findings warranting a report. For this reason, the Family Court found that sexual abuse did, in fact, occur, after holding an evidentiary hearing. No issue was raised as to the hospital defendants’ good faith. Thus, the hospital defendants are indeed entitled to a judgment of dismissal.

On the case by the parents against the city and its attorneys, it is not legally sufficient. Their role as prosecutors of the case could not give rise to liability to the abused infant victim. Thus, those parties should also be entitled to a judgment of dismissal. The record presented was scant for the court to reach a determination on whether or not those defendants breached their duty to their clients pursuant to a traditional malpractice analysis.

Accordingly, the motion and cross-motion were granted. A judgment of dismissal was issued in favor of all defendants.

For a consultation, get in touch with a New York Family Lawyer at Stephen Bilkis & Associates. New York Child Custody Attorneys, among others, at our firm will help you and provide you with the assistance that you need through its consultation services, free of charge. Call us now and get your best interests the protection it needs.

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