Bar News - April 15, 2011
Advocacy for Children – Courts Hit Hard in Budget
Among the casualties in the deeply cut 2012-13 state budget are services for children in the courts.
More than $7 million in funding from the Department of Children, Youth & Families for Children in Need of Services (CHINs) was cut from the House-passed budget. Children who are subject to CHINs petitions are entitled to representation.
Also cut from the House version of the budget was the principal source of funding for guardians ad litem (GALs) in marital cases.
Family Division Administrative Judge Edwin Kelly says the courts will soon stop appointing guardians ad litem in divorce cases for low-income couples because the funding appears doomed. Since the funding cut would take place effective with the new fiscal year, it is unclear how or whether currently appointed guardians will be paid when the money is gone.
The GAL fund, which funds guardian ad litem work for indigent clients – and represents the majority of GAL activity in the courts – was drastically cut in the Governor’s proposed budget and in the version passed by the House. All that remains in the fund is $500,000 for each of the two fiscal years that will cover only statutorily obligated appointments. That amount is far less than the nearly $2 million spent on the GAL fund this year and last year.
(The fund actually is an advance fund. The Office of Cost Containment seeks to recover the fees spent from the fund for GAL fees from litigants and it recovers about one-fourth of the total.)
The remaining amount in the proposed appropriation for 2012-13 for the GAL Fund, reports Nina Gardner, executive director of the NH Judicial Council, will be used only for GAL appointments for statutorily required cases – guardianship of minors and adults and termination of parental rights cases (where the state is the moving party). While funding for family law mediation for indigent litigants was originally cut, it appears that funding for mediation is now contained in the Judicial Branch budget.
These funding decisions must still be approved by the NH Senate and ultimately agreed to by both legislative chambers in a committee of conference, and then signed by the governor.
The loss of GALs in divorce cases alarms many family law attorneys who lament the loss of professionals who are in court to serve as impartial advocates for children. NHBA President Marilyn Billings McNamara said the loss of the GALs will make many contested divorces last longer and will erode the quality of justice. She pointed out that marital masters and judges rely on GALs to serve as "eyes and ears" of the court in investigating the circumstances of the lives of the children caught in the middle of a divorce. In many cases, with two self-represented parties, the only lawyer in the room will be the marital master.
"I understand the implications," of eliminating GALs from family law cases, said Gardner. The Judicial Council extensively discussed GAL funding and its other responsibilities when preparing its budget request. "There were very tough decisions that had to be made. The Council looked at it and decided that we had to follow priorities in cutting our budget. We had to look at what was constitutionally and statutorily required and what programs we could not fund within the parameters given to the agency by the Governor’s guidelines. It decided that it was not necessarily the state’s job to play a role in someone’s divorce."
Gardner agreed that the absence of GALs in divorce cases may prolong litigation and make the job of masters more difficult. Gardner also noted that the GAL fund budget line is an item that is beyond the control of the Judicial Council. Although there is a set fee for GAL work, motions to exceed are often granted by judges and this has raised costs.
Each year, Gardner said, she has had to draw a Governor’s warrant from funds otherwise not appropriated to increase the original appropriation for the GAL fund to cover spending on GALs ordered by the courts. This does not have the effect of increasing the budget line and as result is an off-the-budget item. In the current fiscal year, $800,000 was appropriated and in fiscal year 2010 a warrant for $1,061,000 was needed to cover the additional GAL fees. Based on the current level of expenditures, the amount is expected to be far greater this year.
Katherine Stearns, a New London lawyer and certified GAL, testified against the elimination of the GAL fund. She told legislators, "Not having a guardian ad litem when families are in crisis is going to be devastating to children. Although you may hear concerns with GALs, I can assure you these are a small number of legitimate complaints (as with any profession)."
Another family law attorney, Kysa Crusco of Manchester, writing in her "New Hampshire Family Law Blog," cited three ways she sees that eliminating the GAL Fund will result in more costs and more harm for families: more referrals by courts to the Division of Children, Youth and Families for investigations; more time expended by the court reviewing evidence submitted by litigants and hearing testimony in contested hearings; fewer settlements means more trials and greater delays in hearing matters.
Both Stearns and Crusco said more effort should be made to collect reimbursements to the GAL Fund, thus reducing the overall cost while retaining GALs in the courts.
On April 14, the Senate Finance Committee will be holding hearings on budgets for the NH Judicial Council (where the GAL fund is located) as well as the judicial branch, and some elements of these funding issues may be addressed.