In re Christina W., Sissy W., and Lisa W., 219 W. Va. 678

Summary

The Supreme Court of Appeals of West Virginia considered whether a guardian ad litem in a child abuse and neglect proceeding owes an absolute duty of confidentiality to the child. The court held that confidentiality applies but is not absolute: disclosure to the court is required when necessary to protect the child from a high risk of probable harm. The court affirmed denial of the motion to remove the guardian ad litem because the abuse allegations had ultimately been brought to the court’s attention.

Holdings

1. Because many aspects of a guardian ad litem's representation of a child in an abuse and neglect proceeding comprise duties performed by a lawyer for a client, the West Virginia Rules of Professional Conduct generally apply to that representation.
2. A guardian ad litem owes a duty of confidentiality to a child represented in an abuse and neglect proceeding, but the duty is not absolute. When honoring confidentiality would expose the child to a high risk of probable harm, the guardian ad litem must disclose the information to the presiding court to safeguard the child's best interests.
3. The circuit court did not err in denying DHHR's motion to remove the guardian ad litem because the confidential allegations had ultimately been brought to the court's attention, thereby eliminating the asserted conflict for purposes of the motion.

Questions Presented

1. Whether a guardian ad litem appointed for a child in an abuse and neglect proceeding owes the child a duty of confidentiality.
2. Whether that duty of confidentiality is absolute or yields when disclosure is necessary to protect the child from a high risk of probable harm.
3. Whether the circuit court erred by denying DHHR's motion to remove the guardian ad litem after the court ultimately learned of the child's allegations.
4. Whether the technically moot issue should be addressed because it is capable of repetition yet evades review.

Disposition

affirmed