New Mexico ex rel. Children, Youth and Families Department v. George F.

George F. and Frank F. were two brothers who had been in numerous foster-care placements. George, who was deaf and legally blind, had been in more than 14 placements in less than six years, and Frank had already endured seven placements. Both children had psychological and behavioral problems due to being physically and sexually abused. A court ordered the Children, Youth and Families Department (the department) to find a placement for George that was unconditional and long-term. When George’s guardian ad litem (GAL) learned that the department was planning to place George in an institution, she worried about the fact that the facility did not have staff who were experienced in working with George’s issues, did not have any other children with similar issues, and had no staff members who could communicate with George overnight. After being unable to reach George’s social worker for three days, the GAL was officially notified regarding the department’s placement plan, and she secured a restraining order to keep George from being given an unsuitable placement. Subsequently, an agreement between the GAL and the department was reached, which a court adopted regarding George’s placement, but the department did not place George consistent with the agreement. Then the department’s attorney, who was also the court’s attorney by law, left the GAL a voicemail indicating that she was not permitted to communicate with the department’s staff who were handling George’s case without the attorney’s prior authorization. The court’s attorney considered the employees assigned to George’s case, such as social workers, to be the attorney’s clients and the GAL to occupy an adversarial position. During the next two months, social workers were not permitted to speak to the GAL, and she was not able to gather the substantive information she needed. A department attorney told the GAL that speaking with department staff while not in the court attorney’s presence was an ethical violation. The GAL was not able to get substantive information from the court’s attorney, and she notified the court that she secured separate legal counsel for George and Frank to file a federal civil-rights action against New Mexico (plaintiff). The GAL sought a court order that ex parte contact between a GAL and department personnel to get information on a child’s welfare was not prohibited. The court ruled that department personnel were not the department attorney’s clients, and no statute or ethical rule was applicable. The department appealed.