Application of Quasi-Judicial Immunity to Guardian Ad Litem

N.W.M.  v. Langenbach, 2022 WL 290908 (Pa. Super. 2022) (unreported), allocatur granted Aug. 10, 2022, appeal docket 25 EAP 2023

N.W.M. (“Child”) and E.M. (collectively “Children”), through their parents J.M. and N.M. (“Parents”), and J.A.M. (“Grandmother”) (collectively “Appellants”), filed a complaint against Patrice Langenbach and the Defender Association of Philadelphia (“Defender Association”) (collectively “Appellees”), seeking relief for legal malpractice and intentional inflection of emotional distress claims. Superior Court summarized the relevant facts set forth in the complaint  as follows:

Child was born in February 2016. In April 2016, Parents took her to the Children’s Hospital of Philadelphia (“CHOP”), where a chest x-ray revealed two rib fractures. A CHOP physician concluded the fractures were caused by a non-accidental trauma inflicted by an adult. The Philadelphia Department of Human Services (“DHS”) filed an emergency petition to remove Child and her brother, E.M., from Parents’ care.

The court appointed Langenbach of the Defender Association as child advocate and the guardian ad litem (“GAL”). Children were adjudicated dependent. Child was placed in foster care and E.M. was placed with Grandmother.

Following a July 2016 hearing, the court ordered that Child remain in foster care and reunited E.M. with Parents. Langenbach objected to the reunification of E.M. with Parents. The court declined to place Child in kinship care with Grandmother. Langenbach expressed her agreement with this decision.

Following an August 2016 hearing, the court ordered that Child remain in foster care. Langenbach supported the decision. E.M. was discharged from dependent care in August 2016 and has been in his Parents’ custody since that time. Langenbach allegedly objected to this discharge. Appellants assert that at the August 2016 hearing, Langenbach moved to remove a social worker from the case because the social worker presented positive reports on Parents. Complaint at ¶ 37, 39. Appellants further allege that Langenbach disparaged Parents at the parenting school they attended.

The court held a hearing in December 2016, where Langenbach allegedly argued against kinship care. Appellants allege that she claimed Grandmother had not been a resource because she did not acknowledge injuries, even though this allegedly had not been mentioned at prior hearings. She also allegedly claimed Child was thriving in foster care and stated that she had concerns about “access” if Child was placed with Grandmother. Id. at 58-60. The court entered an order directing that Child would remain in foster care. Parents filed a notice of appeal of this order.

While the appeal was pending, the proceedings continued in the trial court. Appellants claim that at a March 2017 hearing, Langenbach objected to medical evidence Parents sought to admit to explain the rib fractures. Id. at ¶ 75. Following the hearing, the court again denied kinship care.

In May 2017, DHS moved to change Child’s goal to adoption and to terminate parental rights. Appellants assert Langenbach “was in full agreement with the termination of parental rights.” Id. at ¶ 90. Following a hearing, the court granted the motion to change Child’s goal. The court removed Langenbach as Child’s advocate, but left her in place as GAL. The court again declined to place Child in kinship care or to give Grandmother visitation rights. Appellants allege that at the hearing, a social worker testified that Grandmother’s home was appropriate for care, Grandmother had her clearances, and DHS would be exploring kinship care. Appellants assert that when the court asked if there was an order to explore kinship care, Langenbach responded that there was not, and that the court had “indicated that we were not going to be exploring it,” even though, according to Appellants’ Complaint, the record contained no such instruction. Id. at ¶ 101.

Parents filed emergency petitions with this Court to stay consideration of the termination petition until after resolution of the appeal of the December 2016 order. In the trial court, Parents also filed a motion for recusal. Langenbach allegedly filed a response to the motion for recusal, stating, “Nothing in the record indicates a bias, impartiality, or prejudice toward the parents or any party for that matter.” Id. at 112. The trial judge denied the motion for recusal, and we denied the motion to stay.

At a termination hearing in October 2017, according to the Complaint, a forensic psychologist testified that, based on his parenting capacity report, it was his opinion Parents could reunify with Child. Appellants also claim that an employee of the foster parent agency testified that Child had a bond with Parents. Appellants claim Langenbach objected or joined objections 37 times during the hearing when Parents attempted to admit evidence. Appellants assert Langenbach argued for the termination of parental rights. The trial court granted termination and changed the goal to adoption.

Parents appealed, and this Court stayed the orders changing the goal to adoption and terminating parental rights. We also reinstated parental visitation. In May 2018, this Court reversed the permanency orders and vacated the orders changing the goal and terminating parental rights. See In Int. of N.M., 186 A.3d 998, 1014 (Pa.Super. 2018). Among other reasons, we stated that “the trial court’s repeated refusal to consider approved kinship care, in light of the fact that it also found Parents fully complaint with their treatment goals as of December 2017 and where DHS supported kinship placement with paternal grandmother, is an abuse of discretion and not supported by the record.” Id. at 1012-13 (citation omitted). We further stated that the trial judge should “give serious consideration as to whether her apparent bias warrants that she recuse herself.” Id. at 1014 n.31 (citation omitted).

Following remand, the trial judge recused herself. At a hearing held after a new judge was assigned, according to the Complaint, Langenbach continued to oppose reunification and kinship care. She also objected to Grandmother’s presence in the courtroom. The court overruled this objection.

The court then removed Langenbach as GAL, finding she failed to act in Child’s best interest. Child was placed in kinship care with Grandmother and, a short while later, reunited with Parents.

Slip op. at 2-7 (footnotes omitted).

In March 2020, Children and Grandmother filed their Complaint against Appellees alleging legal malpractice and intentional inflection of emotional distress. Appellees filed preliminary objections asserting quasi-judicial immunity and demurred to all claims. The trial court sustained the preliminary objection as to immunity and dismissed the claims, alternatively concluding that the demurrer to E.M.’s legal malpractice claims and Children’s and Grandmother’s IIED claims meritorious but overruled the demurrer as to Child’s legal malpractice claim.

Grandmother and the Children appealed to Superior Court, arguing that because Pennsylvania law does not extend judicial or quasi-judicial immunity to attorneys acting as GALs in dependency proceedings, the trial court should not have found immunity without guidance from the General Assembly or courts. Appellees countered:

because the GAL was acting as an arm of the court to support Child’s best interest, the court correctly concluded Appellees were entitled to quasi-judicial immunity. They argue judges rely on GALs, who gather information and evidence and make recommendations, and claim that, without immunity, courts may not receive the same degree of frankness from GALs. They further claim that the child welfare agency, medical expert, and the city solicitor are all entitled to immunity. Appellees further cite cases from other jurisdictions where GALs were found to be immune.

Slip op. at 8-9 (footnote omitted).

Superior Court reversed and remanded the matter to the trial court on the basis that the trial erred in finding Appellees had quasi-judicial immunity. Superior Court reasoned that:

In Z.F.1 v. Bethanna, the Defender Association of Philadelphia claimed it was immune because the “suit arose from actions taken while one of its attorneys was acting as a guardian ad litem.” 244 A.3d 482, 494 (Pa.Super. 2020). We declined the invitation to create an immunity for GALs, where no existing statute, rule, or case law established such immunity in Pennsylvania. Id. at 494. We explained that “[i]t is not the prerogative of an intermediate appellate court to enunciate new precepts of law or to expand existing legal doctrines.” Id. (quoting Matter of M.P., 204 A.3d 976, 986 (Pa.Super. 2019)). “Rather, the Superior Court is an error-correcting court and we leave policy questions to the Supreme Court and the General Assembly.” Id. (quoting Matter of M.P., 204 A.3d at 986).

Here, as in Z.F.1, Langenbach and the Defender Association seek immunity from suit from actions taken by Langenbach while acting as a GAL. There has been no change in Pennsylvania law, and we again decline the invitation to create immunity for GALs where no such immunity exists in statute, rule, or case law.

Appellees attempt to distinguish Z.F.1., noting that there, the defendant did not raise the immunity defense before trial but rather raised it for the first time in post-trial motions. They claim that appellate courts should be able to consider a quasi-judicial immunity issue, not just the Supreme Court or General Assembly. Their attempt to distinguish Z.F.1 is not convincing. The Court in Z.F.1 did not find waiver for failure to raise the issue before trial, and the timing of the raising of the issue was not a factor in the Court’s decision on the immunity issue. Rather, we addressed the issue, finding that it was not proper for this Court to create an immunity for GALs, as explained above.

The cases the concurring and dissenting memorandum cites do not support its assertion that this Court and the Commonwealth Court have done many times what Appellees ask us to do here. Rather, those cases were instances of the intermediate appellate courts applying existing doctrines to new facts. Although Appellees facially argue for quasi-judicial immunity, see Appellees’ Br. at 23, they do not truly claim immunity under any extant doctrine. They instead mix together aspects of judicial and quasi-judicial immunity, cite precedents from other jurisdictions, and point to the “rationale” for appointing GALs, to maintain that GALs ought to enjoy immunity from suit. See id. at 19-21, 23-28, 29-36. They in substance contend that immunizing GALs will enable them to perform their duties “absent influence, fear or intimidation from anyone.” Id. at 34. In order to credit their arguments, we would have to balance competing interests and choose what we deem to be the “best” path. Appellees thus in reality pose a policy question, and resolving it is beyond this Court’s “ken.” Concurring and Dissenting Memorandum at 2.

Slip op. at 10-11.

In concurring and dissenting opinion, Judge Pellegrini agreed with the Majority’s conclusion, but disagreed that resolution of the issue was beyond the Court’s duties as an “error correcting” court, opining that:

The majority does not address whether the guardian ad litem is entitled to judicial immunity because it finds that as an “error correcting” court, it is not within our ken to address this issue presumably because the Supreme Court has to decide that issue in the first instance. I disagree with the majority’s position, because while we may be an error-correcting court, we are not a potted plant. When questions are raised that are central to the resolution of an appeal, including whether a principle applied in other cases should be applied or extended to the case before us, it is our duty to decide the question before us even when Supreme Court has not squarely addressed the issue. Ultimately, if we “error-correct” too much or too little or just enough, our Supreme Court will take the appeal, correct our ways if need be, and make the final policy decision on that issue. See, e.g., Durham v. McElynn, 772 A.2d 68, 70 (Pa. 2001) (affirming our decision that extended official immunity to assistant district attorneys).

Concur/Dissent slip op. at 3. In a separate concurring opinion, Judge King noted that while she joins the Majority’s opinion in full, she did not find it beyond the purview of the Superior Court to decide whether a GAL was entitled to judicial immunity.

The Pennsylvania Supreme Court granted allocatur to consider the following issues:

(1) Whether quasi-judicial immunity applies to a guardian ad litem is an issue of first impression and implicates a matter of public importance that requires prompt and definitive resolution by this Court.

(2) This Court’s exercise of its discretionary jurisdiction is necessary because the Superior Court egregiously departed from accepted judicial practices when it concluded that Pennsylvania’s  intermediate courts are without authority to pass on questions involving policy considerations.

For more information, contact Kevin McKeon or Dennis Whitaker.