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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
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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305 Nebraska Reports
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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305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
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.
Cite as 305 Neb. 428
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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IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
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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305 Nebraska Reports
IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
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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IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
(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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IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 305 Neb. 428
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.