In re Esperanza M.

Three female students, including 13-year-old E.M., disclosed to a school counselor that they were sexually abused by their fathers. E.M. alleged that she had told her mother (defendant) when her adoptive father (defendant) began touching her, and it stopped for a time before progressing to sexual intercourse. Subsequently, the Children, Youth and Families Division filed a petition, alleging that E.M. was abused and neglected. Two physical examinations of E.M. were normal. One examining physician testified at an adjudicatory hearing that E.M. disclosed sexual abuse, and the other testified that E.M. denied sexual abuse. A clinical psychologist to whom E.M. disclosed abuse testified that E.M. felt great pressure to safeguard her family and desperately wanted to testify so that she could lie and make the judge believe that she had not been abused. E.M. was not allowed to testify, because the psychologist thought it would be psychologically damaging to E.M. E.M.’s parents did not testify either, although they wanted E.M. to testify. When the judge gave his decision, he commented on how interesting and disappointing it was that E.M.’s parents would insist that she take the stand and face scrutiny when they, themselves, were not willing to testify and undergo scrutiny. The guardian ad litem (GAL) assigned to E.M. for the adjudicatory hearing did not really participate in the trial. The trial GAL did not report to the court about E.M.’s best interests or present E.M.’s position. The trial GAL did not offer any pretrial motions, offer an opening statement, have witnesses testify, effectively examine witnesses, and so forth. The children’s court ruled that E.M. was abused and neglected. E.M.’s parents appealed. A different GAL was appointed for E.M. on appeal, who filed an answer brief with the appellate court that presented the GAL’s perspective on E.M.’s best interests and E.M.’s contrary position. E.M.’s parents filed motions to strike the appellate GAL’s written brief because the appellate GAL’s position contradicted E.M.’s position. On appeal, E.M.’s parents raised several issues, including whether E.M.’s case should be heard by a different judge when the case was remanded because the judge’s comments about the parents not taking the stand, despite their Fifth Amendment right not to testify in any proceeding in which their responses could be used against them in a later criminal trial, affected his judgment. The appellate court did not find it necessary to require a different trial judge on remand and determined that the appellate GAL acted properly in presenting the GAL’s position and E.M.’s contrary position. Thus, the appellate court denied the motion to strike the appellate GAL’s brief. Instead, the appellate court assessed the case on an issue not raised by the parties, namely, the effectiveness of the trial GAL’s representation.