In re Guardianship of Suzette G. , 305 Neb. 428 ( 2020 )


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    05/01/2020 01:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    IN RE GUARDIANSHIP OF SUZETTE G.
    Cite as 
    305 Neb. 428
    In re Guardianship of Suzette G.,
    an incapacitated person.
    Alvin G., Guardian, et al., appellees,
    v. Suzette G., appellant.
    ___ N.W.2d ___
    Filed April 3, 2020.     No. S-18-785.
    1. Guardians and Conservators: Appeal and Error. An appellate court
    reviews guardianship and conservatorship proceedings for error appear-
    ing on the record in the county court.
    2. Judgments: Appeal and Error. When reviewing a judgment for errors
    appearing on the record, an appellate court’s inquiry is whether the deci-
    sion conforms to the law, is supported by competent evidence, and is
    neither arbitrary, capricious, nor unreasonable.
    3. Rules of the Supreme Court: Testimony: Guardians Ad Litem.
    Neb. Ct. R. § 6-1469 (2017) does not prohibit testimony by a guardian
    ad litem and instead contemplates that a guardian ad litem can testify
    when such testimony is allowed by the Nebraska Rules of Professional
    Conduct.
    Petition for further review from the Court of Appeals,
    Riedmann, Arterburn, and Welch, Judges, on appeal thereto
    from the County Court for Douglas County, Marcena M.
    Hendrix, Judge. Judgment of Court of Appeals affirmed.
    James Walter Crampton for appellant.
    Jayne Wagner and Emily J. Briski, of Legal Aid of Nebraska,
    for appellee Alvin G.
    Denise E. Frost, of Johnson & Mock, for guardian ad litem.
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    IN RE GUARDIANSHIP OF SUZETTE G.
    Cite as 
    305 Neb. 428
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Suzette G. appealed the order of the county court for Douglas
    County which appointed her brother, Alvin G., as her limited
    guardian. The Nebraska Court of Appeals affirmed the county
    court’s order. We granted Suzette’s petition for further review
    in which she claims that the Court of Appeals erred when it
    determined that the county court did not err when it allowed
    the appointed guardian ad litem (GAL) to testify at the trial.
    We affirm the decision of the Court of Appeals which affirmed
    the order of the county court.
    STATEMENT OF FACTS
    Suzette’s brother, Alvin, filed petitions seeking temporary
    and permanent appointments as her limited guardian. Alvin
    alleged that because of mental health issues, Suzette was inca-
    pable of making responsible decisions regarding her person
    and her health, and he sought a limited guardianship related
    to those matters. A guardianship had been recommended by
    Suzette’s doctor and was part of a plan formulated by the
    mental health board. The court appointed Alvin as temporary
    guardian and began proceedings to consider his petition for a
    permanent guardianship. At a hearing in February 2018, the
    county court appointed a GAL and also appointed a separate
    attorney to act as Suzette’s legal counsel.
    The trial on the permanent guardianship included appear-
    ances by counsel for Alvin and counsel for Suzette, and the
    GAL also appeared. Alvin called both Suzette and himself
    as witnesses when presenting his case as the petitioner, and
    the GAL was allowed to cross-examine both of them. Alvin
    also called the GAL as a witness. Suzette objected to the
    GAL’s testifying, and she argued that the GAL could not act
    as an attorney by cross-examining witnesses and then act as
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    IN RE GUARDIANSHIP OF SUZETTE G.
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    a witness by testifying in the same proceeding. In response,
    the GAL argued that under the guardian ad litem statutes and
    rules, the GAL could do both. The court allowed the GAL’s
    testimony. During Alvin’s direct examination of the GAL,
    Alvin offered and the court received the GAL’s report into
    evidence without objection. Alvin questioned the GAL regard-
    ing information she reviewed in preparing her report and how
    she came to her recommendations. Suzette cross-examined
    the GAL.
    In addition to cross-examining witnesses, the GAL was
    allowed to, and did, make objections throughout the trial. At
    the end of the trial, the GAL was allowed to make a closing
    statement. Following the trial, the court appointed Alvin as a
    permanent limited guardian for Suzette.
    Suzette appealed to the Court of Appeals and claimed that
    the county court erred when it (1) found there was clear and
    convincing evidence that Alvin should be appointed as her
    guardian and (2) allowed the GAL to testify. The Court of
    Appeals rejected Suzette’s assignments of error and affirmed
    the county court’s order. See In re Guardianship of Suzette
    G., 
    27 Neb. Ct. App. 477
    , 
    934 N.W.2d 195
    (2019). Suzette does
    not seek further review regarding whether there was clear
    and convincing evidence to support the appointment, and so
    the Court of Appeals’ resolution of that issue will not be dis-
    cussed herein.
    Regarding Suzette’s claim that the GAL should not have
    been allowed to testify, the Court of Appeals concluded that
    the court did not err when it allowed the testimony. The Court
    of Appeals noted first that Neb. Rev. Stat. § 30-4203(2)(a)
    (Reissue 2016) provides that an appointed guardian ad litem
    may, inter alia, “[c]onduct discovery, present witnesses, cross-
    examine witnesses, present other evidence, file motions, and
    appeal any decisions regarding the person for whom he or
    she has been appointed.” The Court of Appeals further noted
    Neb. Ct. R. § 6-1469(E)(4)(b) (2017), which provides that in
    court proceedings, “[t]he guardian ad litem may testify only
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    IN RE GUARDIANSHIP OF SUZETTE G.
    Cite as 
    305 Neb. 428
    to the extent allowed by the Nebraska Rules of Professional
    Conduct.” The Court of Appeals cited Neb. Ct. R. of Prof.
    Cond. § 3-503.7(a) and stated that the rule “prohibits a lawyer
    from acting as an advocate at a trial in which the lawyer is
    likely to be a necessary witness.” In re Guardianship of Suzette
    
    G., 27 Neb. Ct. App. at 487
    , 934 N.W.2d at 202. But the Court of
    Appeals also noted Neb. Ct. R. § 6-1469(C)(2), which provides
    that “[w]here a lawyer has already been or is appointed to
    represent the legal interests of the person, . . . the guardian ad
    litem shall function only to advocate for the best interests of
    the person.”
    The Court of Appeals reasoned that because the court had
    appointed both the GAL and a separate attorney to represent
    Suzette, “the GAL’s duty was to advocate for Suzette’s best
    interests” and “the GAL was not required to make a determina-
    tion consistent with Suzette’s preferences.” In re Guardianship
    of Suzette 
    G., 27 Neb. Ct. App. at 488
    , 934 N.W.2d at 202.
    The Court of Appeals noted Neb. Ct. R. § 6-1469(C)(3)(a),
    which provides that when the guardian ad litem is “serv-
    ing as advocate for the person’s best interests, the guardian
    ad litem shall make an independent determination,” and that
    “[s]uch determination is not required to be consistent with any
    preferences expressed by the person.” The Court of Appeals
    reasoned that it was the responsibility of Suzette’s separately
    appointed attorney, and not the GAL, to advocate for Suzette’s
    preferences.
    The Court of Appeals cited comment 1 to Neb. Ct. R. of
    Prof. Cond. § 3-503.7, which states in part that “[c]ombining
    the roles of advocate and witness can . . . involve a conflict of
    interest between the lawyer and client.” The Court of Appeals
    reasoned that because the GAL was advocating for Suzanne’s
    best interests rather than for Suzanne’s preferences, “no con-
    flict of interest arose between the GAL and Suzette” as a
    result of the GAL’s acting as a witness. In re Guardianship of
    Suzette 
    G., 27 Neb. Ct. App. at 488
    , 934 N.W.2d at 202. The Court
    of Appeals concluded that the GAL’s testimony “did not run
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    IN RE GUARDIANSHIP OF SUZETTE G.
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    afoul of the Nebraska Rules of Professional Conduct” and that
    therefore the county court “did not err in permitting the GAL
    to testify.” In re Guardianship of Suzette 
    G., 27 Neb. Ct. App. at 488
    , 934 N.W.2d at 202.
    We granted Suzette’s petition for further review.
    ASSIGNMENT OF ERROR
    Suzette claims that the Court of Appeals erred when it deter-
    mined that Neb. Ct. R. § 6-1469 allowed the GAL to testify
    over her objection.
    STANDARDS OF REVIEW
    [1,2] An appellate court reviews guardianship and conser-
    vatorship proceedings for error appearing on the record in the
    county court. In re Guardianship & Conservatorship of Alice
    H., 
    303 Neb. 235
    , 
    927 N.W.2d 787
    (2019). When reviewing
    a judgment for errors appearing on the record, an appellate
    court’s inquiry is whether the decision conforms to the law,
    is supported by competent evidence, and is neither arbitrary,
    capricious, nor unreasonable.
    Id. ANALYSIS Suzette
    argues on further review that the relevant statutes
    and rules precluded the GAL’s testimony in this case and that
    the analysis of the Court of Appeals to the contrary was error.
    Suzette’s arguments necessarily implicate due process con-
    cerns and considerations of fairness to the parties to a guard-
    ianship proceeding. As explained below, we agree with the
    conclusion of the Court of Appeals that on the specific facts
    of this case, the statutes and rules did not prohibit the GAL’s
    testimony, and we further note that due process and fairness
    concerns that might be present under another set of facts were
    not implicated here. Accordingly, we do not comment on other
    circumstances, such as where separate counsel has not been
    appointed and the guardian ad litem represents the subject or
    where the subject’s rights, such as the right to cross-examine,
    have been denied.
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    IN RE GUARDIANSHIP OF SUZETTE G.
    Cite as 
    305 Neb. 428
    [3] Section 30-4203 sets forth the duties and powers of a
    guardian ad litem; it does not specifically address whether a
    guardian ad litem may or should be a witness in a proceed-
    ing. As noted by the Court of Appeals, Neb. Ct. R. § 6-1469
    sets practice standards for guardians ad litem in proceedings
    under the Nebraska Probate Code and provides in subsection
    (E)(4)(b) that in court proceedings, “[t]he guardian ad litem
    may testify only to the extent allowed by the Nebraska Rules
    of Professional Conduct.” The rule therefore does not prohibit
    testimony by a guardian ad litem and instead contemplates
    that a guardian ad litem can testify when such testimony is
    allowed by the rules of professional conduct. We note that
    under Neb. Rev. Stat. § 30-4202(1)(a) (Reissue 2016), a
    guardian ad litem appointed pursuant to the Nebraska Probate
    Code must “[b]e an attorney in good standing admitted to the
    practice of law in the State of Nebraska,” and it follows that
    an appointed guardian ad litem is subject to the rules of pro-
    fessional conduct.
    Suzette relies on Neb. Ct. R. of Prof. Cond. § 3-503.7(a)
    to argue that a guardian ad litem may not simultaneously act
    as an advocate in a proceeding and testify as a witness in that
    same proceeding. Neb. Ct. R. of Prof. Cond. § 3-503.7(a)
    provides that, subject to certain exceptions not relevant here,
    “[a] lawyer shall not act as advocate at a trial in which the
    lawyer is likely to be a . . . witness[.]” The comments to the
    rule elucidate the concerns behind the rule; Neb. Ct. R. of
    Prof. Cond. § 3-503.7, comment 1, states that “[c]ombining the
    roles of advocate and witness can prejudice the tribunal and
    the opposing party and can also involve a conflict of interest
    between the lawyer and client.” In Neb. Ct. R. of Prof. Cond.
    § 3-503.7, comment 2, the concerns related to the tribunal and
    the opposing party are further explained: “The tribunal has
    proper objection when the trier of fact may be confused or
    misled by a lawyer serving as both advocate and witness. The
    opposing party has proper objection where the combination of
    roles may prejudice that party’s rights in the litigation.” Neb.
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    IN RE GUARDIANSHIP OF SUZETTE G.
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    Ct. R. of Prof. Cond. § 3-503.7, comment 4, further notes that
    “[w]hether the tribunal is likely to be misled or the opposing
    party is likely to suffer prejudice depends on the nature of
    the case, the importance and probable tenor of the lawyer’s
    testimony, and the probability that the lawyer’s testimony will
    conflict with that of other witnesses.” Considering the nature
    and the specific circumstances of the present case, as we
    explain more fully below, we agree with the conclusion of the
    Court of Appeals that the GAL’s testimony in this case “did
    not run afoul of the Nebraska Rules of Professional Conduct.”
    In re Guardianship of Suzette G., 
    27 Neb. Ct. App. 477
    , 488, 
    934 N.W.2d 195
    , 202 (2019).
    In this case, the county court appointed separate counsel to
    represent Suzette as authorized by § 30-4202(3), which pro-
    vides that the guardian ad litem may act as “counsel for the
    person who is the subject of the guardianship . . . unless . . .
    there are special reasons why . . . the person who is the subject
    of the proceeding should have separate counsel.” The appoint-
    ment of separate counsel for Suzette by the county court indi-
    cates the court’s determination that the views of the GAL and
    those of Suzette had diverged. Given the existence of a conflict
    of interest between the GAL and Suzette, the court’s logical
    remedy for the perceived conflict was to appoint separate coun-
    sel for Suzette, and it did so.
    The presence of two lawyers and their split roles were fully
    contemplated by Neb. Ct. R. § 6-1469(C)(2), which provides
    that “[w]here a lawyer has already been or is appointed to
    represent the legal interests of the person, . . . the guardian ad
    litem shall function only to advocate for the best interests of
    the person.” In such a situation, the separately appointed coun-
    sel represents the person who is the subject of the guardian-
    ship and his or her preferences whereas the guardian ad litem’s
    role is to advocate for what he or she determines to be the
    person’s best interests. Neb. Ct. R. § 6-1469(C)(3)(a) provides
    that when the guardian ad litem is “serving as advocate for the
    person’s best interests, the guardian ad litem shall make an
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    IN RE GUARDIANSHIP OF SUZETTE G.
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    independent determination,” and that “[s]uch determination is
    not required to be consistent with any preferences expressed
    by the person.”
    The concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a)
    that a guardian ad litem’s testifying might create a conflict
    of interest between the person who is the subject of the pro-
    ceeding and his or her counsel is not implicated under the
    present circumstances. A conflict of interest between the GAL
    and Suzette already existed because their views of Suzette’s
    best interests had diverged, and the court remedied that con-
    flict by appointing separate counsel to represent Suzette. The
    GAL was therefore relieved of a duty to represent Suzette’s
    wishes, and instead, the GAL’s role was to advocate for what
    the GAL determined to be Suzette’s best interests. At that
    point, the GAL was not acting as Suzette’s counsel, and the
    concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a) that an
    attorney’s testimony would create a conflict between the attor-
    ney and the person he or she represents was not present here.
    See In re K Children, 
    120 Haw. 116
    , 121, 
    202 P.3d 577
    , 582
    (2007) (concluding that guardian ad litem’s testimony was
    not improper and reasoning that relevant statute distinguishes
    between “‘guardian ad litem’” and “‘counsel’”). We conclude
    that the GAL’s testifying in this case did not create a conflict
    of interest between counsel and client which did not already
    exist and that it therefore did not implicate Neb. Ct. R. of Prof.
    Cond. § 3-503.7(a) to the extent that such rule is concerned
    with creating conflicts between client and counsel.
    The Court of Appeals ended its analysis of whether the
    GAL’s testimony was allowed under Neb. Ct. R. of Prof.
    Cond. § 3-503.7(a) when it concluded that the testimony
    did not create a conflict of interest between Suzette and her
    counsel. But we find it necessary to consider the other con-
    cerns addressed in Neb. Ct. R. of Prof. Cond. § 3-503.7(a),
    that is, both the potential to prejudice the tribunal and the
    potential to prejudice the opposing party. In the present case,
    those concerns require us to consider the effect of the GAL’s
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    testimony on the county court as fact finder and on Suzette,
    who could now be considered in the nature of an opposing
    party to the GAL.
    As a preface to such analysis, we note that there have long
    been discussion and concern regarding the role of an attorney
    who serves as a guardian ad litem and in particular the appli-
    cation of professional rules of ethics in such a situation. See,
    Roger A. Eddleman & John A. DiNucci, Due Process and the
    Guardian Ad Litem in Elder Law Disputes: Which Hat Will She
    Don With Her Cloak of Neutrality? 13 Marq. Elder’s Advisor
    129 (2012); Marcia M. Boumil et al., Legal and Ethical Issues
    Confronting Guardian Ad Litem Practice, 13 J.L. & Fam.
    Stud. 43 (2011); Robert L. Aldridge, Ethics and the Attorney
    as Guardian Ad Litem, 49 Advocate (Idaho State Bar) 21 (June
    2006). See, also, In re K 
    Children, 120 Haw. at 121
    , 202 P.3d
    at 582 (noting “nationwide” struggle to clarify roles of guard-
    ian ad litem and counsel). Such discussion informs our analysis
    in this case.
    As to the first concern, regarding the potential to prejudice
    the tribunal, we note the portion of comment 2 to Neb. Ct. R.
    of Prof. Cond. § 3-503.7(a) which states that “[t]he tribunal
    has proper objection when the trier of fact may be confused
    or misled by a lawyer serving as both advocate and witness.”
    In a different case, the focus of this concern would be on the
    effect the lawyer’s testifying would have on a jury that was
    acting as the fact finder; in such a case, the potential for con-
    fusion is more apparent. In the present case, the county court
    was the fact finder, and therefore, we consider whether the
    court might have been confused by the GAL’s serving both
    as an advocate for best interests and as a witness. We con-
    clude that under the circumstances of this case, there was no
    such prejudice.
    We do not think the concerns that are present where a
    jury serves as fact finder are present in cases such as the
    instant matter where the court acts as fact finder. We believe
    a court can be expected to understand the different roles of
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    an advocate and of a witness, and a court can be expected
    to distinguish when a guardian ad litem is acting in one role
    rather than the other. Generally, a court may view the guardian
    ad litem as an independent party to investigate and report on
    the subject’s best interests. See Eddleman & 
    DiNucci, supra
    .
    However, it has been observed that, at least in certain respects,
    a guardian ad litem “is viewed as an arm of the court.”
    Id. at 162.
    Whereas here, separate counsel has been appointed
    to represent the preferences of the subject of the proceeding,
    the court can be expected to understand the more limited role
    of the guardian ad litem as an advocate for the best inter-
    ests of the subject. We conclude that the circumstances of
    the present case do not implicate the concern of Neb. Ct. R.
    of Prof. Cond. § 3-503.7(a) to the effect that the fact finder
    would be confused about the guardian ad litem’s role in the
    proceedings and that the tribunal might be prejudiced by the
    GAL’s testifying.
    As to the second concern regarding the potential to preju-
    dice the opposing party, we note the portion of comment 2 to
    Neb. Ct. R. of Prof. Cond. § 3-503.7(a) which states that “[t]he
    opposing party has proper objection where the combination
    of roles may prejudice that party’s rights in the litigation.” In
    the present case, because the GAL was representing what she
    determined to be Suzette’s best interests and the GAL’s views
    diverged from Suzanne’s wishes, Suzanne could be considered
    in the nature of an opposing party to the GAL. We therefore
    consider whether the GAL’s being allowed to testify prejudiced
    Suzanne’s rights in this proceeding. We conclude that under
    the circumstances of this case, it did not.
    As noted above, there has long been discussion of ethical
    concerns related to the role of a guardian ad litem, and those
    concerns relate in large part to the due process and other rights
    of the subject of a proceeding as well as other parties to the
    proceeding. Other courts have had concerns regarding how
    the guardian ad litem’s role in a proceeding affects other par-
    ties’ rights. For example, in S.S. v. D.M., 
    597 A.2d 870
    , 878
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    (D.C. App. 1991), the District of Columbia Court of Appeals
    determined that error arose when a guardian ad litem was
    allowed to act as both the child’s attorney and as a witness
    in an adoption proceeding; although the appellate court ulti-
    mately concluded that there was no miscarriage of justice,
    it stated that “because the guardian ad litem, who had been
    appointed as an advocate for the child, was called as a wit-
    ness for one of the opposing parties, new counsel should have
    been appointed to represent the child.” (Emphasis omitted.)
    In Morgan v. Getter, 
    441 S.W.3d 94
    (Ky. 2014), the Supreme
    Court of Kentucky concluded that a mother’s right to due
    proc­ess included the right to cross-examine the guardian ad
    litem when the trial court relied on the guardian ad litem’s
    report to make custody decisions.
    Contrary to the situations in the cases just cited, we think
    that similar concerns regarding the effect that the GAL’s role
    in this proceeding had on Suzette’s rights were adequately
    addressed. The appointment of separate counsel to represent
    Suzette was designed to protect her rights in this proceed-
    ing. The appointment of separate counsel allowed the GAL to
    focus on advocating for what she found to be Suzette’s best
    interests without subordination to Suzette’s divergent wishes.
    Meanwhile, the separate counsel was able to focus on protect-
    ing Suzette’s rights by advancing her wishes without defer-
    ence to the GAL’s determination of Suzette’s best interests.
    As part of protecting Suzette’s rights, separately appointed
    counsel was able to cross-examine the GAL, as well as other
    witnesses, and to take the necessary steps in order to advance
    Suzette’s arguments.
    CONCLUSION
    Under the circumstances of the present case—a guardian-
    ship proceeding in which separate counsel was appointed to
    represent the subject of the proceeding and the guardian ad
    litem’s role was limited to advocating for the subject’s best
    interests rather than representing the subject—the concerns of
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    Neb. Ct. R. of Prof. Cond. § 3-503.7(a) were not implicated.
    The GAL was therefore allowed to testify under the rules of
    professional conduct and, consequently, under Neb. Ct. R.
    § 6-1469(E)(4)(b), which provides that “[t]he guardian ad litem
    may testify only to the extent allowed by the Nebraska Rules
    of Professional Conduct.” We therefore conclude that the Court
    of Appeals did not err when it concluded that the county court
    did not err when it allowed the GAL to testify, and we affirm
    the decision of the Court of Appeals which affirmed the order
    of the county court which appointed Alvin as Suzette’s lim-
    ited guardian.
    Affirmed.