In re Guardianship of O.A.M., — So.3d —-, 2013 WL 5927613 (Fla. 3d DCA November 06, 2013)

Guardianship proceedings involving minors can be especially challenging for all involved . . . including your judge. Here’s the main problem: unlike most civil cases, in guardianship proceedings the judge plays a dual role: he or she serves both as neutral arbiter and as the person ultimately responsible for protecting the ward’s best interests. In Florida the power and responsibility of a court exercising guardianship jurisdiction over minors is such that the court itself is considered to be the minor’s guardian. See Brown v. Ripley, 119 So.2d 712, 717 (Fla. 1st DCA 1960). Thus “the legal guardian of a minor is regarded as the agent of the court and of the state in the discharge of his duty as such.” Id. How trial judges balance their sometimes competing roles in guardianship proceedings is the subject of the linked-to opinion above.

Case Study:

A Miami probate judge was apparently concerned that the parents/guardians of a minor ward were using guardianship funds to pay for the child’s private school tuition. While these payments may seem benign to most of us (after all, the money’s being used for the child’s benefit), in a guardianship proceeding they raise red flags. Why? Because parents serving as guardians aren’t absolved of their legal responsibility to financially provide for their children. This point is codified in F.S. 744.397(3), which provides as follows:

If the ward is a minor and the ward’s parents are able to care for him or her and to support, maintain, and educate him or her, the guardian of the minor shall not so use his or her ward’s property unless directed or authorized to do so by the court.

In other words, you can’t use your child’s money to pay for normal child-rearing expenses; that’s a parent’s responsibility. That said, if the child/ward has special needs requiring specialized educational support, those costs may be paid for with guardianship funds . . . if approved of by a judge. See Valentine v. Kelner, 452 So.2d 965 (Fla. 3d DCA 1984).

Bottom line, the 3d DCA didn’t fault the judge for being concerned about the private-school payments, it’s how he went about addressing those concerns that lead to his disqualification. So what went wrong? Here’s how the 3d DCA summarized the key facts:

The McFaddens’ motion contains specific statements indicating that the trial judge interviewed, outside the presence of the parties, the principal of the school where the ward was registered to attend. The motion also alleges the trial judge directly obtained financial records from Chase Bank to investigate the guardianship account, without involving the parties. The McFaddens’ motion thus contains specific statements which, if true, indicate the trial judge engaged in an independent investigation of the facts in the case.

Judicial investigation = judicial disqualification:

Florida law is clear: you can’t be both investigator and judge. Once that line is crossed, a judge is subject to immediate disqualification. Here’s how the 3d DCA summarized the law on this point:

“A judge must not independently investigate facts in a case and must consider only the evidence presented.” Fla. Code Jud. Conduct, Canon 3B(7) cmt. A judge’s “neutrality is destroyed when the judge himself becomes part of the fact-gathering process.” Albert v. Rogers, 57 So.3d 233, 236 (Fla. 4th DCA 2011); see also Vining v. State, 827 So.2d 201, 210 (Fla.2002) (“The judge overstepped his boundaries by conducting an independent investigation….”); Wilson v. Armstrong, 686 So.2d 647, 648–49 (Fla. 1st DCA 1996) (holding that trial judge’s ex parte meeting with estate’s accountant constituted a departure from the essential requirements of law).

. . .

Thus, the McFaddens’ allegations, taken as true for purposes of this motion, support a reasonable fear that the judge could no longer serve impartially. The judge should have entered an order of disqualification.

For more on disqualification motions, you’ll want to read Judicial Ethics Bench Guide: Answers to frequently Asked questions.

A judge’s dual role in guardianship proceedings:

What’s most interesting about this case isn’t the disqualification motion itself; it’s the judge’s response to the motion. According to the 3d DCA:

The trial judge responded to the petition noting that “[i]n guardianship matters, there is no one protecting the ward against possible abuses [by the guardian], except the court.”

What I see happening here is a well-intentioned judge trying to balance the somewhat conflicting demands placed upon him in a guardianship proceeding, where he’s expected to serve both as neutral arbiter and as the person ultimately responsible for protecting the ward’s best interests. While sympathetic to his motives, the 3d DCA makes clear judges can’t exceed the clearly-defined boundaries they’re supposed to operate within (even in guardianship proceedings). If there’s any investigating to be done, judges need to use the tools available to them to get the job done the right way (such as appointing GAL’s); they can’t just do it themselves.

A trial judge . . . has methods to address . . . concerns [about possible abuses by a guardian] without engaging in a prohibited personal investigation of facts outside the record. The Florida Probate Rules, for example, authorize appointment of a guardian ad litem when the interests of the guardian are or may be adverse to those of the ward. While the trial court’s actions were undoubtedly motivated by a desire to protect the ward and might well be commendable in another context, those actions are inconsistent with the cold neutrality required of an impartial judge.