OPEGA used the NCSC survey combined with interviews and two in depth case studies (all testimony corroborated through
independent interviews and fact checks) to assess the effectiveness of the complaint process. We found the existing complaint process ineffective in assuring that poor performing GALs are:
• dismissed from on-going cases in a timely manner; • not appointed to new cases they may not be suited for; or • when appropriate, removed from the roster altogether.
The Court’s Rules for GALs documents the complaint process, which is described in the Background section of this report. While the complaint process may seem adequate, in practice several factors diminish its effectiveness.
1. The complaint process is not well known or understood by all parties involved in CP cases, many of whom are interacting with children and GALs on a regular and intimate basis. These individuals are in positions to observe first hand the effect GAL performance has on children and their service provider teams. 2. OCFS policy does not allow caseworkers to voice complaints
about GALs without going through the Assistant Attorney Generals (AAGs) representing their cases. Caseworkers reported “not bothering” to inform AAGs of poor performing GALs since “they won’t do anything about it.” The AG’s office explained to OPEGA that it is rare for AAGs to file complaints against GALs because, as lawyers, they are accustomed to using the adversarial process to expose any relevant issues. Through examination and cross-examination before judges, GAL performance problems should become apparent to the judges who are responsible for taking action. One AAG expressed that it would be unprofessional to complain, under most
circumstances, since judicial independence could be compromised.
3. Parties to cases (formal or interested) may be reluctant to file complaints for fear of retribution from GALs. Foster parents, therapists, caseworkers, and OCFS supervisors all expressed their sense that GAL recommendations carry a great deal of weight with judges. They further explained that exposing or opposing problematic GALs (for instance, informing judges that they are dishonestly reporting visits) may cause GALs, in retribution, to recommend that children be removed from their care. Given that stability is important to the children, these parties are unwilling to express themselves. Whether this fear is well founded or unrealistic is immaterial – it still weakens the complaint process.
4. Even when they receive complaints, presiding judges are limited in their ability to investigate without compromising their
independence. They also have to make difficult decisions about whether removing GALs would be more disruptive to children’s timely progress toward permanency than continuing with GALs who are not performing as desired. Additionally, since only a limited number of GALs are available in some geographic areas, judges may have no choice other than to use GALs with poor reputations in order to meet legislated mandates.
5. Judges do not have access to information about substantiated GAL complaints across (or even within) districts. This information would be valuable to judges when making appointment decisions.
Recommendations
Current barriers that inhibit the filing of legitimate complaints and limit the options for taking effective action on those complaints need to be removed. The complaint process needs to be a strong control for detecting poor performing GALs (though they may be few), and assuring that their performance either improves or they are removed from the roster (see Finding 3). OPEGA suggests the following. A. The Court should enhance the current Rules related to
complaints to include:
• clear criteria to serve as the basis for legitimate complaints (a complaint based merely on a GAL making
recommendations that differ from other stakeholders would not be appropriate);
• transparent policies and procedures for handling complaints so that those complaining will know what to expect; and • clear processes, policies, and procedures for using
complaints to dismiss GALs from cases, to require GALs to take specific actions to improve performance, or to remove them from the roster.
The complaint process and attendant criteria, policies and
procedures should be communicated to all stakeholders involved in CP cases. This should increase the chance that legitimate complaints will be filed and consistent and effective action will be taken as a result. A transparent complaint process should also enhance GALs’ sense of accountability.
B. The Court should create a central file to log complaints and track their status. Information about substantiated complaints should then be reviewed by judges before appointing particular GALs to cases. The Chief Judge and Family Division Manager would also be able to use the compiled information to identify trends, perhaps leading to:
• improvements in training for all GALs;
• mentoring and support for particular GALs; or
• investigations into whether a GAL should be removed from the roster.
The most efficient way to accomplish this would be to develop an electronic application or database to which standard
information about complaints could be input and viewed (with restricted access).
C. The Court should consider establishing an independent oversight board with authority to investigate GAL complaints, recommend dismissal of GALs from specific cases, and remove GALs from the roster (see Finding 3).
D. An avenue should be opened to allow OCFS caseworkers and supervisors to communicate their concerns about GAL
performance to the Family Division or presiding judges. These individuals are likely to have knowledge of GAL performance and compliance with statutorily mandated activities. Since OCFS policy understandably prohibits caseworkers from submitting complaint letters to judges without going through AAGs, the Court should make efforts to obtain this feedback in other ways. In Finding 3, OPEGA recommends implementation of a
performance evaluation process that includes obtaining such feedback and makes suggestions on how this could be accomplished.
Judiciary Action
1. The task force convened to address Finding 1, will make
recommendations about changes to the Court Rules regarding the complaint process. These changes will set appropriate criteria, policies, and procedures for filing and taking action on
complaints. By October 2007, the task force will propose Rule changes and present them to the SJC for approval.
2. By October 2007, the task force also will make recommendations on how to communicate the GAL complaint process to all stakeholders in CP cases at the time GALs are appointed. 3. The Court agrees that sharing information through a centralized
complaint file would be helpful and that an electronic database would likely be the most efficient way to create such a file. The task force will determine by October 2007 whether a complaint database and the accompanying processes, procedures and
reports can be developed and maintained with existing resources. If so, the Court will proceed to do so. If not, the Court will inform OPEGA of this and develop a plan for obtaining
additional resources or research an alternate means to create and use centralized complaint information.
4. The Court will consider the possibility of establishing an
independent oversight board and other mechanisms for receiving feedback on GAL performance as part of the overall proposal it plans to develop in response to Finding 1.