It is very common for parents to have a beef with a Lawyer Guardian Ad-Litem (LGAL). From time to time, parents choose to litigate against the LGAL. A Berrien County dad recently took that approach. He appealed his termination of parental rights based on ineffective assistance of counsel by the LGAL. The case is In re K. Baughhman, Minor and you can read it here. The appeal failed. Here is why:
We have solid case-law that establishes that the right to effective assistance of counsel is a constitutional right which applies to child protective proceedings. That right is always given to the client. However, the LGAL’s client is not the parent; it is the child. There is a basic premise that you cannot enforce someone else’s constitutional rights. You can only enforce your own.
In child protection proceedings (an NA case) the child is a party to the litigation. If you believe the LGAL is ineffective, you need to notify the trial court by bringing a motion to appoint an attorney. Unless the motion is clearly frivolous, the Court should determine that there is a conflict with the LGAL and appoint an attorney to represent the child client. It is possible for the court to appoint both an attorney and an LGAL to represent the child. The Court rules allow for this whenever there is a conflict of interest.
Parents need to understand that there is one important difference between the role of an attorney and the role of the LGAL. The attorney’s obligation is to represent the expressed desire of the client. An LGAL has the extra duty of determining the best interest of the child and advocating for that. The court rules anticipate that there will be cases when those two duties are at odds with each other. That is why the court must occasionally appoint a separate attorney.
Why appoint? Although many parents want to hire an attorney for their child, Michigan law requires the court to appoint both the attorney and the LGAL. The parent can only request that the court appoint an attorney. As mentioned before, this request comes in the form of a motion. Unfortunately, this requirement leaves parents with limited options when there is disagreement with the LGAL.
In cases where the objection is due to LGAL ethical misconduct, a parent may file a complaint with the Michigan Attorney Grievance Commission. However, it is always best to get input from the parent’s attorney first before filing any such complaint.