In re G.J.P.

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 4IN THE
SUPREME COURT OF THE STATE OF UTAH
In re G.J.P.
OFFICE OF PUBLIC GUARDIAN,
Petitioner,
v.
The HONORABLE JUDGE JULIE LUND,
Third Judicial District Juvenile Court,
Respondent.
No. 20190733
Heard November 15, 2019
Filed February 5, 2020
On Petition for Extraordinary Relief
Third District, Salt Lake
The Honorable Judge Julie Lund
No. 1153247
Attorneys:
Sean D. Reyes, Att’y Gen., Stanford E. Purser, Deputy Solic. Gen.,
Amy Jackson Leach, Asst. Att’y Gen., Salt Lake City, for petitioner
Brent M. Johnson, Salt Lake City, for respondent
Thomas A. Luchs, Cottonwood Heights, for Mother, J.R.
Martha Pierce, Salt Lake City, Guardian ad Litem for G.J.P.
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
In re G.J.P.
Opinion of the Court
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 The juvenile court appointed the Office of Public Guardian
(OPG) as guardian ad litem for a mother (Mother) in a parental
rights termination proceeding. OPG did not consent to the
appointment and does not believe it is the appropriate entity to
represent Mother. OPG filed this petition for extraordinary relief
contending that the juvenile court lacks authority to appoint a
guardian ad litem for an adult. OPG also contends that, even if the
juvenile court has that ability, the court exceeded its discretion by
appointing OPG. We grant the petition and afford OPG the relief it
seeks. Although the juvenile court possesses the authority to appoint
a guardian ad litem for an adult, the juvenile court strayed beyond
the bounds of its discretion by appointing OPG in this matter.
BACKGROUND
¶2 In August of 2017, Mother was admitted to the University of
Utah Hospital inpatient psychiatric unit. While hospitalized, she
gave birth to G.J.P. G.J.P. experienced problems breathing and eating
and was placed in the neonatal intensive care unit. G.J.P. remained
hospitalized for several months. After treatment at the University of
Utah Hospital, Mother was committed to the Utah State Hospital.
¶3 Soon after the birth of G.J.P., and with Mother still in the
psychiatric unit, the Division of Child and Family Services (DCFS)
began to inquire what it needed to do to ensure G.J.P.’s well-being.
DCFS met with Mother and G.J.P.’s alleged father, both of whom
acknowledged, according to DCFS, that they were unable to care for
the child. DCFS also attempted to help Mother identify appropriate
family to care for G.J.P., but these efforts, along with DCFS’s
independent search for family members, did not identify anyone
who could raise G.J.P.
¶4 DCFS moved for temporary custody of G.J.P., and the court
granted prehearing custody to DCFS. DCFS also filed a stipulated
motion to appoint a guardian for Mother. The motion noted
Mother’s diagnosis and civil commitment and informed the court
that Mother’s counsel did not believe that Mother understood what
was happening in the termination proceedings. During hearings on
DCFS’s motion, the juvenile court questioned whether it had
jurisdiction to appoint a guardian for Mother.
¶5 Meanwhile, the parties tried, without success, to contact
Mother’s sister who may have previously served as Mother’s
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guardian. Eventually the juvenile court granted custody to DCFS,
and DCFS placed G.J.P. with foster parents.
¶6 The juvenile court also concluded that it needed to
determine if it could order reunification services or if Mother’s
illness rendered her incapable of taking part in those efforts.
Accordingly, the court ordered Mother to participate in two
psychological evaluations. Following the evaluations, Mother’s
counsel again moved to appoint a guardian for Mother, noting that
her illness “renders [Mother] mentally incompetent to assist in her
own defense and communicate meaningfully with counsel.” The
State did not object. The court found Mother incompetent, granted
the motion, and appointed “a public guardian for [Mother].”
¶7 A month and a half later, the juvenile court issued an order
explaining the multiple avenues it had explored to find someone to
serve as Mother’s guardian. The court reported that the Utah Office
of Guardian Ad Litem could not represent Mother because its
representation of G.J.P. created a conflict. The court also recited that
it could find no relative or friend willing or able to serve. And the
court noted that it was unaware of any other mechanism it could
employ to identify and appoint an attorney to act as guardian ad
litem for Mother. But the juvenile court noted that, under its reading
of the Utah Code, OPG could petition or agree to represent Mother
and directed that a representative of OPG appear at the next hearing
“so that the powers of its office may be further discussed.”
¶8 In response to the juvenile court’s directive, OPG argued
that it was not a proper entity to represent Mother because OPG’s
statutorily defined role is narrow and does not generally include
advising or representing individuals in litigation. 1 OPG also argued
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1 The Office of Public Guardian is a statutorily created entity. See
UTAH CODE §§ 62A-14-101 to -111. Section 105, entitled, “Powers and
duties of the office,” allows OPG to, among other things, “serve as a
guardian, conservator, or both for a ward upon appointment by a
court when no other person is able and willing to do so and the
office petitioned for or agreed in advance to the appointment.”
Id. § 62A-14-105(1)(a)(ii). OPG generally only serves in the last
instant when no one else can. Section 75-5-311(3) creates a prioritized
list of who can serve as guardian—the Legislature places OPG as the
very last option right after “any competent person or suitable
institution.” Id. § 75-5-311(3)(i). Even then, the Legislature has
invested OPG with the ability to decide when it will serve as a
(continued ...)
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Opinion of the Court
that the juvenile court was not authorized to find a parent
“sufficiently incompetent to appoint a guardian for purposes of
assistance in litigation.” OPG therefore “declin[ed] to file a petition
on behalf of [Mother].”
¶9 Mother’s counsel replied and claimed that OPG was not
being asked to advise or represent Mother but to serve as guardian
ad litem and “make decisions on her behalf which are in her best
interest.”
¶10 The juvenile court held a hearing where OPG reiterated its
concerns. Despite those concerns, the juvenile court ordered OPG to
“represent” Mother.
¶11 OPG moved to set aside the juvenile court’s order, arguing
again that the juvenile court lacked jurisdiction to appoint a
guardian for an adult. The court denied the motion reasoning
“[t]here is no person available to serve as a guardian for her” and
“[t]he Office of the Public Guardian can provide a person to serve as
a guardian for [Mother].”
¶12 OPG filed an interlocutory appeal of the order of
appointment, and the termination proceeding was stayed. The court
of appeals certified the appeal to this court. Upon its arrival at this
court, we dismissed the petition because a non-party may not file an
interlocutory appeal, but we did so with leave to refile as a petition
for extraordinary relief. OPG then petitioned for relief. The court of
appeals certified the petition to this court.
STANDARD OF REVIEW
¶13 A person may petition for extraordinary relief on any of the
specified grounds under rule 65B of the Utah Rules of Civil
Procedure only when “no other plain, speedy and adequate remedy
is available.” UTAH R. CIV. P. 65B(a). “This court has broad discretion
to grant or deny extraordinary relief.” Gilbert v. Maughan, 2016 UT
31, ¶ 14, 379 P.3d 1263. In deciding whether to grant a petition we
may consider the “egregiousness of the alleged error, the
significance of the legal issue presented by the petition, the severity
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guardian. Section 62A-14-110 instructs that a court cannot appoint
OPG without its consent. Id. § 62A-14-110(1) (“The office may not be
appointed as the guardian or conservator of a person unless the
office petitioned for or agreed in advance to the appointment.”).
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of the consequences occasioned by the alleged error,” or any other
relevant consideration. State v. Barrett, 2005 UT 88, ¶ 24, 127 P.3d 682.
¶14 Whether the juvenile court has authority to appoint a
guardian ad litem presents a question of law. We review questions of
law for correctness. See State v. Moreno, 2009 UT 15, ¶ 7, 203 P.3d
1000. And we review the juvenile court’s decision to appoint a
specific guardian ad litem for an abuse of discretion. See Hanson v. La
Flamme, 761 F. App’x 685, 689 (9th Cir. 2019) (applying an abuse of
discretion standard to review trial court’s decision of who would
serve as guardian ad litem); Gardner by Gardner v. Parson, 874 F.2d
131, 139 (3d Cir. 1989) (same).
ANALYSIS
¶15 Before we address the questions OPG presents, we need to
highlight an issue that raises serious concerns meriting further
exploration. No one has directly challenged whether the
appointment of a guardian ad litem in these circumstances violates
Mother’s due process rights. 2 But the guardian ad litem representing
G.J.P. raised important questions about this issue.
¶16 Citing federal case law, the guardian ad litem argued that
Mother would be entitled to a hearing if the purpose of the guardian
was to override Mother’s legal decisions. We understand the
concern. The juvenile court’s order was somewhat vague on the
proposed role the guardian ad litem would play, and that left room
for G.J.P.’s guardian ad litem to legitimately worry that the court had
authorized the proposed guardian ad litem to make Mother’s
decisions for her. In addition, Mother’s counsel made repeated
references in briefing and oral arguments to the proposed guardian
ad litem making decisions for Mother. See supra ¶ 9. Although these
concerns lurked amidst the arguments—as did a concern that not
appointing someone to assist Mother would also violate her due
process rights—OPG’s petition does not ask us to address these due
process questions.
¶17 We can see the substantial and important questions that
may be implicated by the juvenile court’s decision to appoint a
guardian ad litem, but they are difficult to address in the abstract.
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2 Similarly, the question of whether the juvenile court correctly
determined whether Mother needs a guardian ad litem is not before
this court.
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Opinion of the Court
The calculus could change if the juvenile court envisioned a
guardian ad litem who would “sit next to [M]other and answer her
questions,” as OPG asserts the juvenile court explained at one point,
instead of a guardian ad litem expected to, as Mother’s counsel
asserted, make Mother’s decisions for her. The power of a guardian
ad litem, depending on how the role is defined, may have significant
effects on an incompetent person’s rights and the due process that
should be afforded before a court infringes those rights.
¶18 Courts have recognized that “[t]here is something
fundamental in the matter of a litigant being able to use his personal
judgment and intelligence in connection with a lawsuit affecting
him, and in not having a guardian’s judgment and intelligence
substituted relative to the litigation affecting the alleged
incompetent.” Graham v. Graham, 240 P.2d 564, 566 (Wash. 1952).
Indeed, the Fifth Circuit has held that declaring someone
incompetent and appointing a guardian ad litem implicates a
“protected liberty interest” and the due process requirements of the
Fifth Amendment. Thomas v. Humfield, 916 F.2d 1032, 1033 (5th Cir.
1990) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).
“The appointment of a guardian ad litem deprives the litigant of the
right to control the litigation and subjects him to possible
stigmatization.” Id. at 1034 (italics in original). Furthermore, “[t]he
interposition of a guardian ad litem could very well substitute his
judgment, inclinations and intelligence for an alleged
incompetent’s,” and “the retention of legal counsel or the
employment of a different attorney could be determined solely by
the guardian ad litem . . . .” Graham, 240 P.2d at 566.
¶19 We also note that Utah Rule of Civil Procedure 17(b)
instructs that a “guardian ad litem may be appointed in any case
when it is deemed by the court in which the action or proceeding is
prosecuted expedient to represent the minor, insane or incompetent
person in the action or proceeding . . . .” Our rules authorize courts
to appoint a guardian ad litem but provide no guidance as to the role
that the guardian ad litem can or will play in the litigation.
¶20 Moreover, rule 17(b) delineates no safeguards a court
should employ before appointing a guardian ad litem for an
allegedly insane or incompetent person. Because these issues are not
before us in this petition, we are not in a position to opine on the due
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process to which Mother may be entitled should the juvenile court
seek to appoint a different guardian ad litem on remand. 3
¶21 Additionally, before we reach the merits of OPG’s
contentions, because of some confusion in the juvenile court’s order
and some cross-talk in the briefing, we believe it helpful to clarify
what we talk about when we talk about a guardian. Specifically, it is
helpful to distinguish between a “guardian” and a “guardian ad
litem.”
¶22 A general guardian for an incapacitated individual 4 has
broad power over the person and her rights and affairs. Unless
otherwise limited by the court, a general guardian “has the same
powers, rights, and duties respecting the ward that a parent has
respecting the parent’s unemancipated minor child.” UTAH CODE
§ 75-5-312(2). This generally includes having custody of the ward,
establishing the ward’s place of abode, even if outside of the state,
receiving the ward’s money and property for the ward’s support,
and consenting to any professional care. Id. § 75-5-312(3). Statutory
processes govern this action. See, e.g., id. ch. 75-5 & 75-5b. For
example, when someone petitions the court for a finding that an
adult is incapacitated and in need of a guardian, the court must hold
a hearing, and the allegedly incapacitated person has a right to be
present, have counsel, present evidence, cross-examine witnesses,
and have a trial by jury. Id. § 75-5-303. In statute, there are also
guidelines for who can serve as a guardian, id. § 75-5-311,
requirements for notice, id. § 75-5-309, actions for emergency
appointment, id. § 75-5-310, and other detailed procedures. See id.
§§ 75-5-301 to -317.
¶23 In contrast, the role a guardian ad litem may play is much
less defined. According to those who purport to know such things,
Ad litem is Latin for “to suit.” Ad litem, BLACK’S LAW DICTIONARY
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3 In addition to flagging the issue for remand, we ask our
standing committees on the rules of civil and juvenile procedure to
examine the issue and suggest ways to address the question.
4 “Incapacity” is defined in Utah statute. UTAH CODE § 75-1-
201(22). The statutes governing the court appointment of a guardian
for an adult require a finding of incapacity. Id. § 75-5-303. The
juvenile court in this case stated that it found Mother to be “an
incompetent person,” and not an incapacitated person within the
meaning of section 201.
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In re G.J.P.
Opinion of the Court
(11th ed. 2019) (defining ad litem as “for the purposes of the suit”); Ad
Litem, MERRIAM-WEBSTER DICTIONARY ONLINE,
www.merriam-webster.com/dictionary/ad%20litem (defining ad
litem as “for the lawsuit or action”); Guardian ad litem, BLACK’S LAW
DICTIONARY (11th ed. 2019) (defining guardian ad litem as “[a]
guardian, usu[ally] a lawyer, appointed by the court to appear in a
lawsuit on behalf of an incompetent or minor party” (emphasis
added)). In other words, a guardian ad litem is appointed for a
specific matter before the court.
¶24 Utah’s statutes governing the appointment of a “guardian”
do not, by their express terms, apply to the appointment of a
guardian ad litem. 5 And Utah Rule of Civil Procedure 17(b) allows a
guardian ad litem to be appointed even when there is already a
general guardian over the person. However, beyond this
understanding, the role of guardian ad litem for an incompetent
adult is largely unspecified in Utah law.
¶25 The role of a guardian ad litem for a minor is principally
defined in statute. See UTAH CODE § 78A-2-701 to -705. Whereas, the
role a guardian ad litem for an incapacitated adult is addressed only
in stray references throughout the code. Utah Code section 75-3-
203(4), for example, provides that a guardian ad litem is prohibited
from nominating someone to serve as a personal representative
under the Probate Code. And section 75-1-403 provides that a court
can appoint a guardian ad litem to represent the interest of, and
approve an agreement on behalf of, an incapacitated person in estate
proceedings. See id. § 75-1-403(4).
¶26 OPG contends that the juvenile court did not specify in its
order whether it was appointing OPG as a general guardian or a
guardian ad litem. True enough. But it is reasonable to conclude,
from the context and statements the court made, that it appointed
OPG as a guardian ad litem to assist Mother in this case. The juvenile
court found “there is no procedure available to the Court to act as
Guardian ad Litem,” and “there is no other person willing or able to
act as Guardian ad Litem.” Moreover, the juvenile court noted that
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5 The Probate Code provides that “‘[g]uardian’ means a person
who has qualified as a guardian of a minor or incapacitated person
pursuant to testamentary or court appointment, or by written
instrument . . . , but excludes one who is merely a guardian ad
litem.” UTAH CODE § 75-1-201(20).
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OPG may “agree to represent [Mother] in this action.” (Emphasis
added). Thus, we are confident that the juvenile court envisioned
appointing OPG to represent Mother in the termination case only.
And our analysis proceeds from the conclusion that we are
examining the appointment of a guardian ad litem and not a general
guardian.
I. OPG Can Seek Extraordinary Relief Because
It Lacks a Plain, Speedy, and Adequate
Remedy to Address Its Appointment
¶27 Under rule 65B of the Utah Rules of Civil Procedure, “where
no other plain, speedy and adequate remedy is available,” id. 65B(a),
a person may petition for relief from a court’s wrongful use of
judicial authority, id. 65B(d). The person petitioning on this ground
for relief must be a “person aggrieved or whose interests are
threatened by any of the acts” specified. Id. 65B(d)(1). Rule 65B(d)
contemplates that a person may seek a petition “where an inferior
court . . . has exceeded its jurisdiction or abused its discretion.” Id.65B(d)(2)(A).
¶28 OPG asserts both. OPG claims that the juvenile court
exceeded its jurisdiction by appointing any guardian ad litem for an
adult and that it went beyond the bounds of its discretion by
appointing OPG specifically. OPG has no plain, speedy, and
adequate remedy because it is not a party to the action below.
Indeed, OPG attempted to appeal its appointment, but this court
dismissed that appeal because OPG was not a party to the action.
Supra ¶ 12; see Brigham Young Univ. v. Tremco Consultants, Inc., 2005
UT 19, ¶ 46 & n.7, 110 P.3d 678 (noting that nonparties may not
appeal lower court orders and that extraordinary writ would be the
proper vehicle to challenge such order), overruled on other grounds by
Madsen v. JPMorgan Chase Bank, N.A., 2012 UT 51, ¶ 5, 296 P.3d 671.
Additionally, this petition could not first be brought to the district
court because the juvenile court “is of equal status with the district
courts of the state.” See UTAH CODE § 78A-6-102(3). Thus, a petition
for an extraordinary relief constitutes the proper vehicle for OPG to
advance its arguments.
II. The Juvenile Court has Inherent Authority
to Appoint a Guardian Ad Litem
¶29 OPG first asserts that because juvenile courts are courts of
limited jurisdiction created by statute, they do not have authority to
appoint a guardian ad litem for a parent in a matter before the court.
We disagree.
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Opinion of the Court
¶30 All courts have a responsibility to ensure the fair and just
proceeding of matters before them. This includes the requirement
that the court protect the rights of incompetent parties that come
before it. 53 AM. JUR. 2d Mentally Impaired Persons § 174 (2019). Court
proceedings can exercise the ultimate power of the government to
interfere with rights and freedoms inherent in the individuals that
enter the courtroom doors. If a person is not “competent,
understandingly and intelligently, to comprehend the significance of
legal proceedings,” Graham v. Graham, 240 P.2d 564, 565 (Wash.
1952), her most fundamental rights could be gravely affected.
¶31 Courts are tasked with adjudicating vital disputes, like
considering whether a parent should be stripped of the right to raise
her child, and are duly obligated to ensure the parties affected are
competent to be involved in the process. Indeed, we have codified
this important principle in our Rules of Civil Procedure. Rule 17(b)
states that “an insane or incompetent person who is a party must
appear either by a general guardian or by a guardian ad litem
appointed in the particular case by the court in which the action is
pending.”
¶32 OPG nevertheless asserts that a juvenile court, exercising its
duly granted jurisdiction to hear a case, cannot protect an
incompetent party by appointing her a guardian ad litem. This
ignores the long-standing principle, recognized by our sister states
and federal courts, that the authority to appoint a guardian ad litem
is inherent in the court’s exercise of its proper subject matter
jurisdiction.
¶33 For example, in Graham, a mother petitioned the
Washington Supreme Court to prohibit the trial court from
appointing a guardian ad litem for her in a child visitation dispute.
240 P.2d at 565. Much like the present case, the trial court in Graham
had called a psychiatrist to testify about the mother’s mental health
in regards to the underlying matter but, after that testimony, “felt
compelled to protect the interests of [the mother] by appointing a
guardian ad litem for her.” Id. The mother’s counsel objected. Id. The
Washington Supreme Court had to decide, it noted, whether the trial
court acted “within and not in excess of” its jurisdiction. Id. That
court then reasoned that “the principle is well established” for courts
to appoint guardian ad litem when needed, “[i]rrespective of specific
statutory authorization.” Id. Such a party may not “comprehend the
significance of legal proceedings and the effect [and] relationship of
such proceedings in terms of [his or her] best interests.” Id. Thus, the
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power to appoint a guardian ad litem is “part of and incidental to”
the court’s jurisdiction over the underlying case. Id.¶34 In Guardianship of H.L., the Vermont Supreme Court
concluded that “the appointment of a guardian ad litem is a power
inherent in courts in dealing with those appearing before them who
are under disability.” 460 A.2d 478, 479 (Vt. 1983). The court
reasoned that the trial court had to be able to fulfill its duty to see
that the interests of an incompetent person were fully protected,
especially when fundamental rights were involved. Id. Similar to the
case here, that case involved the right of a parent to the custody of
her child. Id. That court noted these rights as basic rights and held
that when the incompetent’s counsel raised the issue to the court, it
was “incumbent upon the court to insure that [mother’s] interests
were protected,” and that the court therefore erred in not
investigating further or appointing a guardian ad litem. Id. at 480.
¶35 In the same fashion, the Colorado Supreme Court held that
a juvenile court had power to appoint a guardian ad litem for an
adult even in a wider scope of cases than relevant statutes
contemplated. See People in Interest of M.M., 726 P.2d 1108, 1118–20
(Colo. 1986). That court held that it was “well established” and
“proper” for a court to appoint a guardian ad litem for an
incompetent party. Id. at 1118. The court further reasoned that this
principle was well supported by the court’s rule of procedure
requiring the protection of incompetent persons and appointment of
guardian ad litem in some circumstances. Id. at 1119.
¶36 These courts are not outliers. The principle is well
established across the country. See, e.g., Zaro v. Strauss, 167 F.2d 218,
220 (5th Cir. 1948) (“Even in the absence of an inquisition of insanity
or of a commitment, where a person is incompetent courts generally
have inherent power to protect the interests of the incompetent by
appointing a guardian ad litem to represent the incompetent in
proceedings.”); Estate of Leonard, ex rel., Palmer v. Swift, 656 N.W.2d
132, 139 (Iowa 2003) (“In addition to [the rules of civil procedure],
the court has the inherent power to do whatever is essential to the
performance of its constitutional functions, . . . including the
appointment of a guardian ad litem.” (citation omitted)); In re Interest
of A.M.K., 420 N.W.2d 718, 719 (Neb. 1988) (reviewing a parental
rights termination proceeding from juvenile division and holding
that “[e]very court has inherent power to appoint a guardian ad
litem to represent an incapacitated person in that court”);
Buckingham v. Alden, 53 N.E.2d 101, 104 (Mass. 1944) (“[T]he
authority to appoint a guardian ad litem or next friend is not limited
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to the foregoing statutory provisions. Such power is inherent in the
court and its exercise at times becomes necessary for the proper
functioning of the court.”); Schultz v. Oldenburg, 277 N.W. 918, 922
(Minn. 1938) (“[T]his power of the district courts to [appoint a
guardian ad litem] is not taken away by the statutes authorizing the
probate courts to appoint general guardians for insane persons.”
(citation omitted)); Wilson v. Ball, 523 S.E.2d 804, 806 (S.C. Ct. App.
1999) (“[T]he authority for a circuit court to appoint a guardian ad
litem is inherent in the court itself . . . .”); In re Serafin, 649 N.E.2d
972, 976 (Ill. App. Ct. 1995) (“The circuit court is charged with a duty
to protect the interests of its ward and has, by statute and otherwise,
those powers necessary to appoint a guardian ad litem to represent
the interests of the respondent during the court’s exercise of its
jurisdiction.” (italics in original)); Berman v. Grossman, 260 N.Y.S.2d
736, 738 (N.Y. App. Div. 1965) (“The power to appoint a guardian ad
litem to appear for and represent the incompetent in the proceeding,
absent prohibitory legislation, is among the court’s inherent powers
in the matter of supervision over the person and property of the
incompetent.”); 53 AM. JUR. 2d Mentally Impaired Persons § 174 (“A
court has the inherent power to appoint a guardian ad litem to
represent an incompetent person in that court.”).
¶37 After reviewing this case law, we similarly agree that a
court, even a statutorily-created juvenile court, may appoint a
guardian ad litem for an incompetent adult in a matter properly
before the court. This power is inherent in the court’s jurisdiction
independent of a specific statutory grant of authority.
¶38 OPG raises several arguments attempting to keep us from
this conclusion. First, OPG argues that the juvenile court does not
have inherent power because it is a legislatively created court of
limited jurisdiction. For this proposition, OPG cites to Western Water,
LLC v. Olds, 2008 UT 18, 184 P.3d 578, and its discussion of State ex
rel. B.B., 2004 UT 39, 94 P.3d 252.
¶39 In Western Water, we allowed a district court to award costs
even when it lacked subject matter jurisdiction over the underlying
matter because, we said, the district court has inherent power over
its processes, including attorneys. See 2008 UT 18, ¶ 42. In contrast, in
State ex rel. B.B. we did not allow a juvenile court to award costs
because it did not have jurisdiction over the underlying matter. See
2004 UT 39, ¶ 20. We distinguished State ex rel. B.B. because juvenile
courts, unlike district courts, are courts of limited jurisdiction.
W. Water, 2008 UT 18, ¶¶ 46–47. OPG points to the intersection of
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these holdings and argues that juvenile courts are limited to those
powers enshrined in statute.
¶40 OPG’s argument misses the mark. The jurisdiction at issue
in State ex rel. B.B. was the juvenile court’s subject matter jurisdiction.
We reasoned that the juvenile court could not award costs because it
did not have subject matter jurisdiction over the underlying dispute.
State ex rel. B.B., 2004 UT 39, ¶ 19; see also W. Water, 2008 UT 18, ¶ 46.
In other words, the juvenile court did not have “inherent” power to
do something in aid of a case over which it lacked subject matter
jurisdiction. In contrast, here there is no question that the juvenile
court has subject matter jurisdiction over a parental rights
termination proceeding. See UTAH CODE § 78A-6-103(1). And, as
described above, we join the throng of other states that have
concluded that a court has inherent power to appoint a guardian ad
litem to aid the progress of a case within its subject matter
jurisdiction.
¶41 Second, OPG notes that the Juvenile Court Act specifically
spells out that juvenile courts have “exclusive original jurisdiction in
proceedings concerning . . . appointment of a guardian of the person
or other guardian of a minor who comes within the court’s
jurisdiction . . . .” Id. § 78A-6-103(1)(d). OPG asserts that a ruling that
juvenile courts have inherent authority to appoint a guardian ad
litem would render this statute superfluous. We disagree. This
statute simply excepts other courts from having original jurisdiction
to name guardians for minors who are under the juvenile court’s
proper jurisdiction. There is no indication in the statute that the
Legislature intended this statement of the juvenile court’s original
jurisdiction to strip the juvenile court of its inherent authority to
appoint a guardian ad litem for an incompetent adult in a matter
properly before it.
¶42 Third, OPG points to the Utah Probate Code, which outlines
the procedures for appointing a guardian, and asserts that those
provisions deny the juvenile court the jurisdiction to appoint a
guardian for an adult. Specifically, OPG asserts that the Probate
Code provides the sole basis for appointing a guardian for an
incapacitated adult.
¶43 OPG argues that Utah Code section 75-5b-202 states that a
“court of this state has jurisdiction to appoint a guardian” if certain
requirements are met, and that the phrase “court of this state” does
not encompass juvenile courts. OPG correctly asserts that the
Probate Code defines “court” as those courts “having jurisdiction in
matters relating to the affairs of decedents.” Id. § 75-1-201(8). Because
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In re G.J.P.
Opinion of the Court
the juvenile court does not have jurisdiction over the affairs of
decedents, it is not, reasons OPG, a court within the meaning of the
Probate Code. Thus, OPG argues that because section 75-5b-201
states that these statutes are the exclusive jurisdictional basis for
appointing a guardian, the juvenile court could not have jurisdiction
to appoint OPG in this case.
¶44 This argument fails however, because when the Probate
Code speaks of guardians, it refers to general guardians and not
guardians ad litem; as noted, the definitions that apply to the
Probate Code define “guardian” but specifically exclude a “guardian
ad litem” from that definition. See id. § 75-1-201(20). OPG
nevertheless contends that this definition of guardian applies only
generally throughout the Probate Code and that there is another,
more specific definition of guardian in the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act
(UAGPPJA). Id. §§ 75-5b-101, et seq. There, guardian is defined as “a
person appointed by the court to make decisions regarding the person
of an adult, including a person appointed under Title 75, Chapter 5,
Part 3, Guardians of Incapacitated Persons.” Id. § 75-5b-102(4)
(emphasis added). Because this definition does not contain the carve
out for guardians ad litem found in the general definition, OPG
believes that UAGPPJA’s requirements for appointing an adult
guardian, including vesting the district court with exclusive
jurisdiction for that appointment, applies to guardians ad litem for
an adult as well. See id. § 75-5b-201.
¶45 Although OPG is correct that UAGPPJA’s definition of
guardian does not contain the general definition’s exclusion of
guardians ad litem, we are not convinced that this evinces a
legislative intent that UAGPPJA govern the appointment of
guardians ad litem for an adult. This is because UAGPPJA applies to
a guardian appointed “to make decisions regarding the person of an
adult.” Id. § 75-5b-102(4). This hearkens back to the term of art
“guardian of the person,” which is sometimes employed to describe
a guardian “responsible for caring for someone who is incapable of
caring for himself or herself because of infancy, incapacity, or
disability.” Guardian of the person, BLACK’S LAW DICTIONARY (11th ed.
2019); accord Home Town Fin. Corp. v. Frank, 368 P.2d 72, 75 (Utah
1962) (referring to “guardian of his person” as one who “look[s] after
his personal affairs”). It also echoes language that we use to talk
about a general guardian who has “general care and control of the
ward’s person and estate.” General guardian, BLACK’S LAW
DICTIONARY (11th ed. 2019).
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¶46 Moreover, UAGPPJA is based upon the uniform act. The
commentary to the act states that the uniform legislation “would not
ordinarily apply to a guardian ad litem.” NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS, UNIFORM ADULT
GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICTION ACT 8
(2007). Our Legislature adopted the uniform act’s definition. Because
of this, we have little trouble concluding that the Legislature did not
intend UAGPPJA to divest juvenile courts of their inherent ability to
appoint a guardian ad litem.
¶47 Finally, OPG argues that Utah Rule of Civil Procedure 17(b),
which requires an incompetent person to appear by guardian or
guardian ad litem, cannot increase a juvenile court’s jurisdiction or
run contrary to statute. We agree that this court could not, by rule,
give the juvenile court subject matter jurisdiction over a category of
disputes from which the Legislature had deliberately excluded it by
statute. But, as discussed above, the appointment of a guardian ad
litem is inherent in the court’s jurisdiction to manage the cases over
which it has proper subject matter jurisdiction and so does not
increase the court’s authority.
III. The Juvenile Court Exceeded its Discretion by
Appointing the Office of Public Guardian
As Guardian Ad Litem
¶48 OPG next asserts that even if we conclude, as we have, that
the juvenile court does have the authority to appoint a guardian ad
litem for an adult, it was wrong to appoint OPG. OPG argues that it
is an entity created in statute whose “powers and duties” are defined
solely by statute, see UTAH CODE § 62A-14-103, and that the juvenile
court’s order contravenes these statutes.
¶49 The statute directs OPG to “serve as a guardian,
conservator, or both for a ward upon appointment by a court when
no other person is able and willing to do so and the office petitioned
for or agreed in advance to the appointment.” Id. § 62A-14-
105(1)(a)(ii). “Guardian” here is defined by reference to the
guardianship statutes that specifically exclude guardian ad litem. See
id. § 62A-14-102(4). Thus, OPG argues, it would be expressly outside
its enabling statutes to serve as a guardian ad litem.
¶50 The Legislature also decreed that OPG must have
“petitioned for or agreed in advance to the appointment” before a
court can draft it into service. Id. § 62A-14-105(1)(a)(ii). That did not
occur here. OPG reiterates that the juvenile court “cannot compel
OPG to do more than what it is authorized to do by statute.”
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In re G.J.P.
Opinion of the Court
¶51 We take OPG’s point. The Legislature appears to have
created OPG for a very specific purpose. And the Legislature
empowered OPG to be the sole arbiter of when it will serve. Against
this statutory backdrop, the juvenile court exceeded the bounds of its
discretion in appointing OPG without its consent.
¶52 This does not mean, however, that the juvenile court has
depleted its options. There appears to be nothing in statute that
speaks to the qualifications to serve as a guardian ad litem for an
adult. Certainly, the parties have not pointed us to anything that
would limit who can serve. Our rules appear to be similarly bereft of
requirements. Thus, the pool of people who could potentially be
appointed as guardian ad litem in a case such as this is vast.
¶53 We can understand why the juvenile court looked to OPG
when efforts to locate a family member or friend failed. 6 But it
_____________________________________________________________
6 The juvenile court correctly noted that we have devised no
formal process for the court to appoint an attorney to serve as
guardian ad litem for an adult when more traditional candidates—
like a family member or friend—cannot be found. But this lack of
procedure does not warrant drawing OPG into the matter contrary
to its statutory mandate.
And while we understand that the juvenile court may have
perceived that it had exhausted its efforts to find someone to help
Mother, we note the long tradition in our state of attorneys stepping
up to serve in difficult situations when requested.
Rule 6.1 of the Utah Rules of Professional Conduct urges
attorneys to participate in activities that serve the legal system and
profession. Many attorneys have kept faith with that rule by
agreeing to serve as pro bono counsel in Post-Conviction Remedies
Act cases. Many of us have, at some point in our careers, received a
call from a judge who, having seen potential merit in a
Post-Conviction Remedies Act petition, is searching for a volunteer
to represent the petitioner. We appreciate the many attorneys who
have responded to those calls. Cases like this appear to be another
way that attorneys could fulfill rule 6.1’s mandate.
Because a guardian ad litem does not have to be an attorney,
there may be other groups, such as social work clinics and mental
health advocacy groups, who may be willing to help identify
individuals willing to serve in difficult situations.
We appreciate that this is far from a perfect solution, and that we
should not systemically rely on vague procedures and the good will
(continued ...)
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Cite as: 2020 UT 4Opinion of the Court
strayed outside the boundaries of its discretion when it appointed
OPG without its consent.
CONCLUSION
¶54 The juvenile court has inherent authority to appoint a
guardian ad litem for an incompetent party appearing before it in a
matter over which it has subject matter jurisdiction. However,
because it is contrary to OPG’s statutorily granted role, the juvenile
court exceeded its discretion by ordering OPG to serve as guardian
ad litem. We grant the petition and remand for further proceedings.
_____________________________________________________________
of our bar and community to ensure that our system treats people
fairly. As our rules committees examine ways we might improve our
rules with respect to the appointment of guardians ad litem for
adults, we ask that they consider how the courts can better identify
and appoint suitable guardians ad litem for incompetent adults.
17