Just over three months after the Administrative Office of Pennsylvania Courts issued a report urging the Lackawanna County Court of Common Pleas to re-evaluate whether it should be assigning the majority of custody cases to its full-time GAL, Danielle M. Ross, the county renewed Ross’ contract, potentially worth about $38,000 per year.

But one difference between Ross’ new contract and her previous contract, according to Lackawanna County Judge Patricia Corbett, is that this one provides for a monthly rather than annual salary.

Corbett, who oversees the county’s family court and is in charge of the implementation of the AOPC’s recommendations, told The Legal on Monday that this change was made in order to allow for greater flexibility in case the county decides to make changes to its GAL program over the next year.

In September, Corbett said, the county held a symposium with family lawyers and representatives from the AOPC to assess the various family court programs, including the GAL program.

At the symposium, according to Corbett, a committee of nine family law practitioners was assigned to look more deeply into the AOPC’s 51 recommendations for the GAL program, which has come under public criticism and federal scrutiny in the past year.

Ross’ previous contract expired in July, but Corbett said she felt "uncomfortable" at the time re-upping for another year when the future of the program was still uncertain.
"I wouldn’t participate in a yearly contract when we may be changing things dramatically," Corbett said.

Now that a committee has been appointed to assess the GAL program, Corbett said she felt the county should proceed in the interim with Ross continuing as its sole full-time GAL, albeit on a more tentative basis.

"I felt it would be essentially putting kids at risk if we didn’t continue with the GAL and with the one that’s presently in place, but on a month-to-month basis in case the committee comes back sooner than we expect," Corbett said.

Corbett said that while she had initially hoped any changes to the GAL program would be made by January, it appears it will take longer than that, as the AOPC has advised that the committee would need to observe the GAL program for a full year in order to make an objective assessment.

Still, Corbett added, the committee will not be precluded from recommending changes to the program sooner than that.
"The thought was the committee wouldn’t be fully informed until all the data is collected, but if anything happens — if anything unusual arises — that doesn’t mean interim changes couldn’t be made," Corbett said.

But one family law practitioner from outside Lackawanna County said the contract still sets a climate under which Ross has too much work and too much say.

"The problem is that if there are more than 50 [appointments] a year, how does she do this?" said Lynne Gold-Bikin, chair of the family law practice at Weber Gallagher Simpson Stapleton Fires & Newby. "She has to interview potential witnesses, examine and cross-examine witnesses. If you gave me this job and told me that I had two a week … that’s a lot of work."

Gold-Bikin added that the court has tasked her with performing custody evaluations and acting as the child’s lawyer even if it runs counter to the parents’ interests.

"She could say it’s in the best interest of all little girls to be with their mothers," Gold-Bikin said. "She’s judge, jury and executioner here."

Ross’ contract, effective October 1 and approved by Corbett in an October 15 order, provides for the GAL to be paid $3,166 per month and is retroactive to July 22, when the previous contract expired.

According to Corbett, Ross’ pay is part of the court’s budget, paid by the county.

Like her previous contract, the new one authorizes Ross to bill private parties — as well as the court in cases where private parties are unable to pay — at a rate of $50 per hour in addition to her monthly salary.

Unlike her previous contract, however, Ross’ new agreement expressly forbids her from engaging in private practice in Lackawanna County.

"One of the things we thought this contract was doing was eliminating conflict," Corbett said.

In addition, while the only grounds for termination stated in Ross’ previous contract were "(a) the death of the GAL and (b) for just cause based upon nonperformance of duties by GAL," the new contract provides for termination in the event of "(a) the death of the GAL; (b) the failure of the GAL to perform her duties satisfactorily after notice or written warning given by the court; (c) for just cause in accordance with Pennsylvania law; and/or (d) economic reasons of the court, which may arise during the term of this agreement and which may be beyond the control of the court."

While Lackawanna County’s GAL program has garnered public criticism and The Legal has previously reported that federal investigators have subpoenaed records from the Lackawanna County Family Court regarding the GAL program, Corbett has maintained that no wrongdoing on Ross’ part has ever been found.

In an interview with The Legal in March, Corbett defended her decision not to remove Ross from a custody case after an attorney raised concerns about media reports of a federal investigation into the county’s GAL program.

Corbett said it had been her understanding at the time that William Browning, the head of the county’s Department of Human Services and who also oversees the county’s Department of Children and Youth Services, had conducted his own investigation into the county’s funding of the guardian ad litem program and had found no wrongdoing.

"The only allegation I heard [about Ross] was with regard to billing, which our investigation found to be completely inaccurate," Corbett said, adding that she felt removing Ross from a case based on an unproven allegation would have been "unfair."

Still, Corbett said Monday that the court has already made some changes to its GAL program based on the AOPC’s recommendations.

For one, it relocated the GAL office to another part of the family court building, further away from the family court administrator’s office.

That move came in response to the AOPC’s recommendation that the court "weigh the pros and cons of having an independent contractor working in the family court building because of the perception created that there is a relationship between the adjudicator and the independent contractor."

Corbett said Monday that the court is also looking into using the GAL function more sparingly.

A review of family court records by The Legal revealed that the court assigned Ross to an average of 88 cases per year between 2009 and 2011.

According to records provided by the staff at the Lackawanna County Family Court Administrator’s Office, Ross was put on 84 cases in 2009, 105 cases in 2010, and 76 cases last year. Over that stretch, another guardian ad litem stepped in on eight occasions, the records indicated.

Records indicate that in several cases, counsel for one of the parties petitioned for the appointment of a guardian ad litem.

But a majority of the appointments came automatically. A 2008 policy change allowed for the "automatic appointment" of a guardian ad litem to cases where any of a 13-item list of circumstances were met, a September 22, 2008, procedural order reveals. That order — which came some months into one of Ross’ contracts and was signed by the president judge at the time, Judge Chester T. Harhut — allowed a guardian ad litem to be appointed to any case where "visitation removal," "lack of communication between parties" and relocation were involved, among other things.

While the AOPC noted in its report that several attorneys had complained that Ross was appointed "way too often" and that Ross herself had estimated she is appointed to 98 percent of all GAL cases, it found, based on statistics provided by the county clerk of judicial records’ office, that Ross was only appointed to about 30 percent of all custody, protection from abuse and divorce cases in which custody was an issue filed in the county between 2008 and 2011.

Art Heinz, a spokesman for the AOPC, told The Legal in July that the remainder of those cases went to other GALs.

Still, the AOPC recommended in its report that the court "determine whether to continue to assign the majority of custody cases to only one GAL," based on complaints that Ross’ caseload is too large for her to handle by herself.

"If the court continues to make broad use of Ms. Ross, it may wish to consider utilizing more than one GAL," the report said. "The costs and benefits of utilizing: (1) an additional full-time GAL or (2) the conflict GALs more frequently should be weighed by the court."

On Monday, Corbett said she agreed with the criticism that the GAL is overused in Lackawanna County.

"The first prong I want the committee to look into is the circumstances under which the GAL is automatically appointed," Corbett said. "It is my sense right now, and I believe it is supported by the bar, that [the September 22 order] is overly broad. In other words, the GAL is appointed too frequently."

Corbett said she does not want to change that order until she hears from the committee but added that she believes judges and magistrates in the county have already begun reining in their GAL appointments.

Ross did not return a call for comment at press time.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI. •