IN THE INTEREST OF J. N., A CHILD.
BARNES, P. J., ANDREWS and MCMILLIAN, JJ.
mother of J. N. appeals from a protective order granted to J.
N.'s Guardian Ad Litem ("GAL") in this
dependency action. For reasons that follow, we vacate the
juvenile court's ruling and remand for further
record shows that shortly after his birth in June 2015, J. N.
was placed in the temporary protective custody of the
Department of Family & Children Services
("DFCS"). DFCS filed a Petition for Dependency, and
the juvenile court appointed a GAL for J.N. Over the ensuing
months, the court found J. N. to be a dependent child,
adopted a case plan for the mother, extended DFCS's
custody, and held several review hearings.
February 24, 2017, the mother filed a Motion for Discovery,
asserting that she had requested discovery from DFCS but had
not yet received any information. In response, J. N.'s
GAL, who is also an attorney, moved for a protective order
and to quash the discovery request to the extent it applied
to her file. The juvenile court granted the GAL's motion,
but issued a certificate of immediate review, and we granted
the mother's application for interlocutory appeal.
statutory scheme governing dependency proceedings sets forth
a framework "[t]o assist and protect children whose
physical or mental health and welfare is substantially at
risk of harm from abuse, neglect, or exploitation and who may
be further threatened by the conduct of others." OCGA
§ 15-11-100 (1). As part of those proceedings, the
juvenile court must appoint a GAL and an attorney for an
alleged dependent child. See OCGA § 15-11-103 (b)
(attorney); OCGA § 15-11-104 (a) (GAL). The attorney
represents the child, while the GAL "assist[s] the court
in determining the best interests of [the] child." OCGA
§ 15-11-2 (35). A person does not need to be an attorney
to act as a GAL. See OCGA § 15-11-104 (e). But an
attorney can serve as both the GAL and legal representative
for a child "unless or until there is conflict of
interest between the attorney's duty to such child as
such child's attorney and the attorney's considered
opinion of such child's best interests as guardian ad
litem." OCGA § 15-11-104 (b). Although not
completely clear from the record, it appears that the GAL in
this case may also be J. N.'s attorney.
determining the best interests of a child, a GAL must
consider numerous factors, including the child's welfare
and safety; the mental and physical health of everyone
involved; the child's cultural, familial, religious, and
community ties; the need for permanence; and the child's
wishes and long term goals. OCGA § 15-11-105 (b). To
assess these factors, the GAL conducts an independent
investigation, interviews the child, consults with other
professionals involved in the case, and reviews relevant
materials, such as court documents, educational information,
and health reports. OCGA § 15-11-105 (c). All records
and materials acquired or reviewed during this investigation
are deemed confidential and cannot be disclosed by the GAL
"except as ordered by the court." OCGA §
her motion for protective order, J.N.'s GAL argued that
this confidentiality provision, as well as the
attorney-client privilege and work product doctrine, shielded
her file from discovery. The trial court agreed, granting a
blanket protective order over the entire file without
considering its contents. Nothing in the statutory scheme,
however, provides such sweeping protection for a GAL's
file. Although the GAL must treat all information and records
obtained as confidential, that material may be disclosed if
ordered by the court. See OCGA § 15-11-105 (f).
Furthermore, the juvenile court must ensure that the parties
have the ability to challenge the GAL's recommendations
"in accordance with the rules of evidence applicable to
the specific proceeding." OCGA § 15-11-104 (k).
put, there is no absolute privilege that prevents discovery
merely because a file belongs to, or the information was
created, gathered, and maintained by, the GAL. See In the
Interest of B. H., 295 Ga.App. 297, 299 (3) (671 S.E.2d
303) (2008) (noting that, under a prior version of statutory
scheme, the legislature did not "enact an evidentiary
exclusion of communications between a child and a [court
appointed special advocate]"). Compare OCGA §
24-5-501 (listing types of communications that are privileged
and "excluded from evidence on grounds of public
policy"). The juvenile court, therefore, erred in
imposing blanket protection for the GAL's file.
discovery of that file, however, is equally inappropriate.
The attorney-client privilege or work product doctrine may
shield portions if the GAL is acting as J. N.'s attorney.
See OCGA § 15-11-103 (c) ("A child's attorney
owes to his or her client the duties imposed by the law of
this state in an attorney-client relationship.");
St. Simons Waterfront v. Hunter, Maclean, Exley &
Dunn, 293 Ga. 419, 421-422 (1) (746 S.E.2d 98) (2013)
(discussing attorney-client privilege); Wellstar Health
Sys. v. Jordan, 293 Ga. 12, 17 (743 S.E.2d 375) (2013)
(discussing work product doctrine). And although the
confidentiality provision in OCGA § 15-11-105 does not
create an absolute privilege, it prevents unfettered
disclosure of the GAL's investigative materials. Finally,
OCGA § 15-11-170 (e) allows the juvenile court to
deny, in whole or in part, or otherwise limit or set
conditions concerning a discovery response upon a sufficient
showing by a person or entity to whom a request for discovery
is made that disclosure of the information would: (1)
Jeopardize the safety of a party, witness, or confidential
informant; (2) Create a substantial threat of physical or
economic harm to a witness or other person; (3) Endanger the
existence of physical evidence; (4) Disclose privileged
information; or (5) Impede the criminal prosecution of a
minor who is being prosecuted as an adult or the prosecution
of an adult charged with an offense arising from the same
transaction or occurrence.
we vacate the juvenile court's ruling and remand for
further review of this discovery dispute. On remand, the
juvenile court must exercise its discretion to determine
whether the material sought by the mother is privileged or
otherwise should not be subject to discovery pursuant to OCGA
§§ 15-11-105 and 15-11-170 (e). See In the
Interest of B. H., supra at 300 (4) (discovery in this
type of proceeding "is allowed in the discretion of the
judge"). In doing so, the court should consider whether
any non-privileged information is "so material to the
[mother's] case as to outweigh the policy, as expressed
in [OCGA § 15-11-105 (f)], that a [GAL's]
confidential information not be disclosed." Id.
at 299-300 (3) (applying former OCGA § 15-11-9.1 (h)
(1), which provided that all records acquired, reviewed, or
produced by a CASA - an individual appointed to advocate for
the child's best interests in a deprivation proceeding -
"shall be deemed confidential and shall not be disclosed
except as ordered by the court").
vacated and case remanded.
Barnes, P. J., and ...