Samantha Petrone v. Ryan Connolly (2013)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO DISQUALIFY GUARDIAN AD LITEM (155)

The defendant father has moved that the Guardian ad litem (GAL) be disqualified from representing the interests of the minor child.

A review of the record reveals that the parties, never married, are the parents of one minor child, a boy, four years old.   The parties have been engaged in rather contentious litigation commencing when the child was three months old.   Judgment entered on December 7, 2009 wherein the parties had joint legal custody of the child with primary residence with the mother.   The matter has returned to court on numerous occasions for modification of the father's access.   This is the child's second GAL.

The following dates and events are relevant:

1. On August 15, 2012, the father filed a motion for modification (142).

2. On October 15, 2012, Attorney Nicole Vidal was appointed as the child's GAL.

3. On November 5, 2012, the GAL met with the father.

4. On December 3, 2012, the matter was referred to family services for mediation and continued until January 28, 2013.

5. On January 8, 2013, the mother filed a motion to open and modify, requesting sole custody (149).

6. On January 11, 2013, the father's present attorney, Jason Burdick, entered his appearance.

7. On January 28, 2013, a stipulation entered allowing the child to be enrolled in therapy and for the child to attend the father's upcoming wedding.

8. On or about February 6, 2013, DCF issued a report critical of the father's parenting.   This report allegedly contained factual statements, opinions or observations of the GAL, critical of the father's parenting.

9. This DCF report became available to the parties on or about April 8, 2013.

10. On April 8, 2013, the parties entered into a stipulation whereby the father's visitation would be supervised at the Access Agency and that he would enroll in therapy.   The parties agreed to enter into co-parenting counseling.

11. On May 1, 2013, the father filed a motion to disqualify the GAL and the motion was argued before the undersigned on May 6, 2013.

The defendant's argument is two-pronged;  that in 2009 the GAL was employed as an attorney at a firm wherein the defendant's attorney was then a clerk and that the GAL has shown bias against the defendant.

Regarding the first claim, there was no evidence or even a colorable argument that the GAL would have bias against the defendant's attorney.   There was nothing to suggest that the GAL and the defendant's attorney had any interaction regarding the defendant or any interaction at all.   Moreover, the defendant's attorney entered his appearance after the GAL was already engaged.   He cannot complain about a problem which his appearance created.

The second claim is essentially that the GAL has shown bias or prejudice against the father by spending more time interviewing the mother than the father and by giving false information to DCF, which painted the father in a negative light.

That the GAL has spent more time interviewing the mother (who is the primary custodian of the child) than she has spent interviewing the father at this early juncture is of no consequence.

The information communicated from the GAL to DCF is either true, false or partly true or/and partly false.   Clearly, if the information was true, that could not be any basis for disqualifying the GAL. If it is false, in whole or in part, it was either an unintentional mistake on the part of the GAL or was made with malice.   Certainly, if the GAL made an innocent mistake about certain facts and communicated inaccurate information, that would not be the grounds for disqualification;  guardians frequently make factual errors which can be fodder for effective cross examination.   Only if the GAL communicated false information to DCF, knowing that it was false with the intention of undermining the father's visitation rights, would there exist grounds for disqualification.

There was no evidence presented to support a conclusion that the GAL intentionally communicated factually inaccurate information to DCF with the intention of prejudicing the defendant's case.   In fact, there was not even evidence that the information was inaccurate.   This appears to be the case of a parent, unhappy with the position taken by the child's GAL, attempting to shoot the messenger.   Naturally, if the factual premises underlying the GAL's position are shown to be false, her position might very well be undermined in the eyes of the court.

In the case of Rubenstein v. Rubenstein, 2004 Conn.Super. LEXIS 537 [36 Conn. L. Rptr. 600], the court (Devine, J.) considered the mother's motion to disqualify the GAL, arguing that the GAL's involvement in the case prejudiced the mother from prosecuting her case.   The court in Rubenstein, supra, correctly held that although Connecticut General Statutes § 45a–132(d) and (f) provides the authority to appoint a GAL for a child, there is no statutory authority to remove that person.   Rather, under a due process argument, the moving party must prove specific prejudice to the prosecution of one's case as a grounds for disqualification.   In other words, it is the burden of the defendant father in this case to allege and prove that the GAL should be disqualified from representing the interests of the minor child because her continued representation prejudices the defendant from prosecuting his case.   This has not been accomplished.

In a similar instance, the court in Strobel v. Strobel, 64 Conn.App. 614 (2001) held:

“We dismiss the defendant's appeal with respect to the court's decision refusing to disqualify the child's counsel because the plaintiff lacks standing to raise the issue.  “The issue of standing implicates the court's subject matter jurisdiction ․ Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard.”  Taff v. Bettcher, 35 Conn.App. 421, 424–25, 646 A.2d 875 (1994).  “Our case law is also clear that a person cannot gain standing by asserting the due process rights possessed by another individual.   It is axiomatic that due process rights are personal, and cannot be asserted vicariously ․ Thus, once the court finds it appropriate to appoint counsel for the minor child, the representation is the child's entitlement, not the parent's.”  Id., 425–26.   Generally, the defendant has no standing to raise a claim on behalf of her child.  Lord v. Lord, 44 Conn.App. 370, 375, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S.Ct. 1065, 140 L.Ed.2d 125 (1998).   The defendant did not claim that her request was made to prevent prejudice to her own case.   See Id., 375–76.   The defendant, therefore, has no standing to pursue her claim that the court improperly denied her motion to disqualify her child's counsel.   See Taff v. Bettcher, supra, 428.”

CONCLUSION

For the foregoing reasons the defendant's motion to disqualify the Guardian ad litem is denied.

Shluger, J.

Shluger, Kenneth L., J.