Matter of TM

[*1] Matter of TM 2008 NY Slip Op 50671(U) [19 Misc 3d 1113(A)] Decided on February 20, 2008 Family Court, Kings County Olshansky, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 20, 2008
Family Court, Kings County

In the Matter of TM

A Child Under the Age of Eighteen Alleged to be Neglected by TM MM

NN-35537/06

Emily M. Olshansky, J.

The respondent mother in the above child protective proceeding has moved to have the Law Guardian relieved and new counsel assigned to represent the child's interests. Respondent mother's counsel asserts that on January 8, 2008, during the fact-finding hearing, while the caseworker for the Administration for Children's Services was testifying, the Law Guardian "read a People/Us magazine under her desk" and "text messages on her cell phone." In addition, counsel for respondent mother notes that the Law Guardian asked the caseworker no questions during cross-examination. According to counsel for respondent mother, "the last straw" was during an off-the-record bench conference, when the Law Guardian stated her support for the agency's position. At that point, counsel contends, he became "very upset, because (the Law Guardian) appeared to fail to pay attention to the testimony during the trial, yet took a position against my client."

The motion is opposed by the Law Guardian. She emphatically denies that she was [*2]reading a magazine, although she admits that there was one on her desk. She also denies that she was reading text messages asserting, "there is no cell phone service in the court." The Law Guardian asserts that she has diligently represented her now five-year-old client's interests. Specifically, she asserts that she met with her client twice, conducted an extensive and thorough investigation and made a determination to advocate for a resolution that she believed to be in the child's best interests. She asserts that although she did not wish to cross-examine the caseworker, she was paying very close attention and is knowledgeable about all of the facts and circumstances at issue in this case.

Counsel for respondent maternal great-grandmother has submitted an affirmation which essentially supports the observations of respondent mother's counsel about the Law Guardian's actions, although he takes no position in support of, or opposition to, the motion. After having carefully considered the papers submitted, the Court finds the affirmation submitted by respondent mother's counsel devoid of viable evidence indicating any bias on the part of the Law Guardian, ineffective assistance of counsel, failure to diligently represent the child's interests or other recognized grounds for disqualification. Accordingly, the motion is denied.

CONCLUSIONS OF LAW

A Law Guardian Serving in a Guardian Ad Litem Role Enjoys Quasi-Judicial Immunity from a Parent's Claims

It is well-settled in this and other states,[FN1] that a Law Guardian appointed to represent the best interests of the child or a guardian ad litem enjoys quasi-judicial immunity from parents' claims regarding conduct relating to the performance of their duties (Bluntt v O'Connor, 291 AD2d 106 [4th Dept 2002], lv denied 98 NY2d 605 [2002]; Bradt v White, 190 Misc 2d 526 [Sup Ct, Greene County 2002]; Marquez v Presbyterian Hosp., 159 Misc 2d 617 [Sup Ct, Bronx County 1994]; Lewittes v Lobis,2004 WL 1854082 [SDNY 2004]; see also, Andrewski v Devine, [*3]280 AD2d 992 [4th Dept 2001] [the mother cannot sue her own attorney for malpractice on behalf of her children because no attorney-client relationship exists between the children and the attorney representing the mother]).

In Bluntt v O'Connor (291 AD2d 106), the Appellate Division, Fourth Department held that the mother lacked standing to bring a legal malpractice claim on behalf of the child against the court-appointed Law Guardian since she had her own adversarial interests in the action and had a motive to dispute the Law Guardian's opinion. In addition, the Court held that the mother lacked standing to bring the action individually since she was a third party who was not in privity with the Law Guardian. Absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by alleged professional negligence (citing Maurer v Maurer, 243 AD2d 672 [2d Dept 1997], quoting Spivey v Pulley,138 AD2d 563 [2d Dept 1988]). The Court stated that the mother had not demonstrated a "relationship so close as to approach that of privity" as to allow her to maintain the action on her own behalf (Bluntt v O'Connor, 291 AD2d 106, 114-115). The Appellate Division looked to decisions in other states and found that most courts that have considered suits by disgruntled parents against attorneys appointed by courts to protect children have granted, on public policy grounds, absolute quasi-judicial immunity to the attorneys for actions taken within the scope of their appointments (291 AD2d at 116). The Court explained that quasi-judicial immunity is necessary because exposure of Law Guardians to liability under such circumstances would affect the willingness of qualified attorneys to accept such appointments. "That disincentive is against public policy and should be eliminated" (Id. at 119). The Court stated that "from a public policy perspective, it is better to have a diligent, unbiased, and objective advocate to assist the court in determining and protecting the best interests of the child than it is to assure that the minor child may later recover damages in tort" (Id. at 118).

Similarly, in Bradt v White (190 Misc 2d 526), the Supreme Court held that a Law Guardian enjoys quasi-judicial immunity from civil liability in actions brought by a parent for conduct directly relating to the performance of the Law Guardian's duty to further the best interests of the child. The Court explained that a Law Guardian must be able to function free from the threat of harassment from retaliatory litigation brought by dissatisfied parents (190 Misc 2d at 534). The threat of civil liability for conduct directly relating to the performance of the Law Guardian's duties should not be available to inhibit the Law Guardian from necessary investigation and advocacy on behalf of the child (190 Misc 2d at 531).

Likewise, in Marquez v Presbyterian Hosp. (159 Misc 2d 617), the Supreme Court held that the Law Guardian appointed for a five-year-old child in a child protective proceeding, cannot be held liable in a legal malpractice action by the parents individually or on behalf of the subject child based on the Law Guardian's alleged inadequate representation in failing to call a particular witness at the fact-finding hearing. The court emphasized that since the Law Guardian had served in a guardian ad litem role, requiring an independent position based on an evaluation of the best interests of the child, liability could not attach absent a showing that the Law Guardian had failed to act in good faith in exercising discretion or failed to exercise any discretion at all.In the instant case, the child's court-appointed Law Guardian enjoys quasi-judicial immunity from claims brought by respondent mother on behalf of the child since she has her own adversarial interests in the proceeding and has a motive to dispute the Law Guardian's opinion. In addition, the respondent mother lacks standing to bring an action individually since she is a third party who is not in privity with the Law Guardian. Moreover, respondent mother cannot raise issues that do not affect her own rights, therefore, she does not have standing to raise issues concerning the quality of the Law Guardian's representation since such claims relate to the child and do not affect her personal rights.

Although the Law Guardian enjoys immunity from civil liability, such immunity does not protect her from responsibility for violations of the Code of Professional Responsibility (Elrod, Linda, Child Custody Practice and Procedure § 12:11, Representation of Minor Child [Nov. 2007]). Nevertheless, the public policy considerations that preclude suits based on civil liability are also relevant where, as here, a dissatisfied parent or her attorney seeks to replace a Law Guardian based on speculative and unsubstantiated claims concerning the quality of the Law Guardian's representation.

The Law Guardian cannot be required to satisfy expectations or standards of performance laid down for her by counsel for respondent mother. His motives are dictated by his obligation [*4]to represent his client, with her own interests, which do not necessarily coincide with the interests of the child. A rule that would make a Law Guardian answerable to parent's attorney for the manner of her representation, would affect the willingness of qualified attorneys to accept appointments, inhibit the Law Guardian from necessary investigation and advocacy on behalf of the child and punish her for taking a position adverse to the parent. That disincentive is against public policy and should be eliminated.

While it is the view of this Court that issues regarding the quality of Law Guardian representation are not properly raised by a parent's attorney, such claims must be considered once they have been made. Here, counsel for respondent mother asserts that the Law Guardian should be removed for two reasons. First, although not clearly articulated, counsel suggests that the Law Guardian unfairly prejudged respondent mother by taking "a position against (her)" without "pay(ing) attention to the testimony during the trial." Second, counsel asserts that the Law Guardian failed to diligently represent the child's interests by reading a magazine and text messages during the trial. Finding no credible factual basis to support either assertion, the motion for disqualification must be denied (Rosenberg v Rosenberg, 261 AD2d 623 [2d Dept 1999]).

Absent Evidence of Bias, Failure to Diligently Represent the Interests of the Child, Ineffective Assistance of Counsel or other Recognized Grounds for Disqualification, this Court is without Discretion to Relieve the Law Guardian



The role of a Law Guardian, assigned to represent a child too young to make considered judgments, is to be an advocate for the best interests of the child, not the parents. Accordingly, the fact that the Law Guardian disagrees with the position advanced by counsel for respondent mother and supports a finding of neglect, does not suggest that removal is warranted (In re Brittany W., 25 AD3d 560 [2d Dept 2006] [rejecting parent's claim that removal was warranted based on Law Guardian's alleged bias where the claim was based on the fact the Law Guardian adopted a position favoring the opposing party]; Jason A.C. v. Lisa A.C., 30 AD3d 1110 [4th Dept 2006]).

Although the Law Guardian should not have a particular position or decision in mind at the outset of the case, Law Guardians are not expected to be "neutral automatons and [and,] [a]fter an appropriate inquiry, it is entirely appropriate, indeed expected, that a Law Guardian form an opinion about what action, if any, would be in a child's best interest' " (In re Nicole VV., 296 AD2d 608 [3d Dept 2002], citing Carballeira v Shumway, 273 AD2d 753, 756 [3d Dept 2000] quoting Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act § 241 at 218-219 [the Law Guardian's highly unfavorable view of the parent did not reflect a personal and unreasoned prejudging of the issues but rather a professional judgment that evolved over time in response to what the Law Guardian perceived as proof of the parent's maltreatment of her children]).

The Law Guardian's statutory duty is to provide the child with "independent representation." Consequently, the Law Guardian should not be disqualified absent grounds that would justify disqualifying any other lawyer from representing a client (Stien v Stien, 130 Misc 2d 609 [Fam Ct, Westchester County 1985] [parent's motion to remove the Law Guardian denied since allegations that the Law Guardian adopted a position favorable to the parent's adversary and [*5]declined to meet with him and the child did not demonstrate bias]; Matter of Apel, 96 Misc 2d 839 [Fam Ct, Ulster County 1978] [parent's motion to remove the Law Guardian denied although the Law Guardian had a negative view of the parent and supported termination of parental rights since the Law Guardian's views did not develop in advance of the hearing and without knowledge of the facts]).

At some point in the proceeding, the Law Guardian has a right to formulate an opinion and then to attempt to persuade the court to adopt the position, which in her judgment, will best promote the child's interests. Nothing in the record or counsel's affirmation establishes that this is not precisely what happened here (Armenio v Armenio, NYLJ, Aug. 3, 1999, p.25, col. 2 [Sup Ct, Suffolk County]).[FN2]

A party seeking to have another party's counsel disqualified bears a heavy burden of proving that disqualification is warranted (S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437 [1987]; Gulino v Gulino, 35 AD3d 812 [2d Dept 2006] [disqualification of counsel during litigation implicates not only the ethics of the profession but also the parties' substantive rights, thus requiring that such assertions be carefully scrutinized]; Unger v Unger, 15 AD2d 389 [2d Dept 2005] [disqualification requires a clear showing that such relief is warranted]; Shaffer v Winslow, 188 Misc 2d 860 [Fam Ct, Oswego County 2001] [party seeking disqualification of counsel carries a heavy burden]; Olmoz v Town of Fishkill, 258 AD2d 447 [2d Dept 1999] [disqualification of an attorney should not be granted absent a clear showing by the moving party that disqualification is warranted]).

That burden is not met where, as here, opposing counsel submits a conclusory affidavit presenting nothing more than speculation that the Law Guardian should have pursued a different trial strategy, cross-examined a non-adverse witness and paid closer attention during one witness' direct testimony (Matter of Mathew C., 227 AD2d 679 [3d Dept 1996] [disqualification is not warranted by mere disagreements over trial strategies, tactics or the scope of cross-examination]; Olmoz v Town of Fishkill, 258 AD2d 447 [2d Dept 1999] [disqualification was properly denied based on conclusory affidavits submitted by moving party's attorney which failed to present anything more than sheer speculation about the possibility of a basis for disqualification]; Giblin v Sechzer, 97 AD2d 833 [2d Dept 1983] [disqualification of opposing counsel denied where the moving party submitted nothing more than conclusory assertions that there might be a basis for disqualification]). [*6]

Counsel Failed to Establish that the Law Guardian did not Diligently Represent the Child's Interests or that she Provided Ineffective Assistance of Counsel

The Court rejects respondent mother's counsel's suggestion that the Law Guardian failed to diligently represent the best interests of the child or, that the child was denied the effective assistance of counsel (see e.g., Matter of Jamie TT., 191 AD2d 132 [3d Dept 1993]). A claim of ineffective assistance of counsel requires a showing that counsel failed to provide meaningful representation and that the deficient performance prejudiced the party's rights. Specifically, the moving party must establish that counsel's representation fell below an objective standard of reasonableness, under prevailing professional norms, and that there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different (Strickland v Washington, 466 US 668 [1984]; In re Chase, 2008 WL 203622 [SDNY 2008]; Edwards v Mazzuca, 2007 WL 2994449 [SDNY 2007]; In re Bryan W., 299 AD2d 929 [4th Dept 2002] [to prevail on a claim of ineffective assistance the moving party must demonstrate that he was deprived of meaningful representation and that he suffered actual prejudice as a result]).[FN3]

The party making a claim of ineffective assistance must identify the specific acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Counsel is presumed to have been competent and the burden is on the party asserting otherwise to demonstrate the absence of meaningful adversarial representation (Matter of Jeffrey V., 82 NY2d 121 [1993]; Jackson v Leonardo, 162 F3d 81, 85 [2d Cir 1998] [there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that counsel's conduct was not the result of error but instead of trial strategy]; In re Brian S.M., 309 AD2d 1224 [4th Dept 2003] [respondent was not denied effective assistance of counsel based on his Law Guardian's failure to move to dismiss the petition since respondent failed to demonstrate the absence of strategic or other legitimate explanations for the Law Guardian's actions]).

When reviewing decisions by counsel, courts are instructed not to use hindsight and second-guess reasonable professional judgments (Mayo v Hederson, 13 F3d 528, 533 [2d Cir 1994]). Strategic choices made after investigation of the relevant law and facts are not subject to challenge and the court must be highly deferential to counsel's decisions (Stickland, 466 US at 688; Kent v Smith, 2007 WL 2907350 [NDNY 2007]).

In the instant case, respondent mother's counsel suggests that the Law Guardian's conduct fell below an [*7]objective standard of reasonableness when she failed to cross-examine the ACS caseworker and read a magazine and text messages during the caseworker's direct testimony. The court rejects both assertions.

The Court finds that the allegations of respondent mother's counsel, if credited, would not be sufficient to satisfy the deficient performance or prejudice prong of Stickland. Examination of the record reveals that the Law Guardian actively participated in this proceeding. She met with her client on two occasions, conducted an extensive investigation, participated in pre-trial conferences and, given the child's age, reasonably pursued a trial strategy designed to protect her client's best interests.[FN4]

The Law Guardian's decision not to cross-examine the ACS caseworker is precisely the type of strategic decision that courts are cautioned not to second-guess. Decisions concerning trial strategies, tactics and the scope of cross-examination have uniformly been rejected as a basis to disqualify an attorney especially where, as here, the witness' testimony supports the Law Guardian's theory of the case and no prejudice resulted (Matter of Mathew C., 227 AD2d 679; In re Michael DD., 33 AD3d 1185 [3d Dept 2006] [Law Guardian was not ineffective for failing to cross-examine witnesses called to corroborate the victim's testimony because their testimony was at variance with the victim's and did not establish the necessary elements of the offense]; see also People v Yarber, 122 AD2d 433 [3d Dept 1986] [counsel's decision to forego cross-examination did not support claim of ineffective assistance of counsel given that witnesses' direct testimony supported the defense]; Marquez v Presbyterian Hosp., 159 Misc 2d 617 [Law Guardian was not ineffective in failing to call a particular witness to testify at the fact-finding hearing]).

The Court also rejects the claim that the Law Guardian was reading a magazine or text messages during the hearing as insufficient to demonstrate ineffective assistance of counsel. This behavior was not observed by the Court and was never raised by respondent mother's counsel during the fact-finding hearing when corrective action could have been taken. Whether counsel was holding this information in abeyance until he decided whether he needed it to attempt to remove the Law Guardian, or for some other reason, does not matter. The Court rejects this belated basis for the [*8]Law Guardian's removal, as well (Armenio v Armenio, NYLJ, Aug. 3, 1999, p. 25, col. 2 [Sup Ct, Suffolk County]).

Nevertheless, even if the Court were to credit counsel's assertions regarding the Law Guardian's deficient performance, the failure to allege that the Law Guardian's actions prejudiced the rights of the subject child would be fatal to his claim. Even if an attorney's performance is objectively unreasonable, the moving party must still prove prejudice, e.g., a reasonable probability that, but for the deficiency, the result of the proceeding would have been different (Stickland, 466 US at 694; Strickland v Washington, 466 US 697; accord, Lugo v Kuhlmann, 68 F Supp2d 347 [SDNY 1999]; Mallet v Miller, 432 F Supp2d 366 [SDNY 2006]; Marshall v Artus, 2007 WL 2406958 [NDNY 2007] [the issue of deficient performance need not be addressed if the moving party is unable to show prejudice]). No such showing has been made here.

In the instant case, counsel does not even suggest that the Law Guardian's actions negatively impacted upon the child's interests. He simply contends that her actions negatively impacted upon him and suggests that his client might have been affected, as well. These contentions are insufficient to establish prejudice to the child's interests.

Conclusion

Whether or not respondent mother or the Court agrees with the views of the Law Guardian is, for purposes of this motion, beside the point. The true issue on this motion is whether it is appropriate for the court to consider dispensing with the services of the Law Guardian whom it has appointed, on grounds such as those alleged by counsel for the respondent mother herein, in light of the statutory function of the Law Guardian to provide independent representation to minors who are the subject of Family Court proceedings (Family Ct Act §§ 241, 249 [a]) and in the absence of any of the grounds that justify disqualifying a lawyer from representing a client in other types of cases law (Stien v Stien, 130 Misc 2d 609 [Fam Ct, Westchester County 1985]; Armenio v Armenio, NYLJ, Aug. 3, 1999, p. 25, col. 2 [Sup Ct, Suffolk County]).

In representing a child in Family Court a Law Guardian has, in some respects, a heavier burden of responsibility to the client and to the Court than does the lawyer representing an adult. In these cases the Law Guardian must protect the child's interests, and has a duty to resist efforts to enlist her support by either side.

First and foremost the Law Guardian is a lawyer, and subject, of course, to the Code of Professional Responsibility. As with other advocates, she may develop a point of view in the course of her representation with which the Court, or other counsel, may disagree. This in no way detracts from the effectiveness of the representation of the child. The Law Guardian need not at her peril second-guess the parents.

The Law Guardian retains all of a lawyer's autonomy. She cannot be required to satisfy standards of performance laid down for her by other counsel in the case, whose motives are dictated by the obligation to represent another party, with his or her own interests, which may not coincide with the interests of the child. A rule that would make this Law Guardian answerable to a parent for the manner of her representation of the child in the circumstances of this case would discourage competent, self-respecting lawyers from serving as Law Guardians by removing from such service the privileges of creativity, imagination and autonomy that reward the practice of law (Stien v Stien, 130 Misc 2d 609 [Fam Ct, Westchester County 1985]; Armenio v Armenio, Aug. 3, 1999, NYLJ, p. 25, col. 2 [Sup Ct, Suffolk County]).

Accordingly, it is [*9]

ORDERED, that the motion by respondent mother's counsel is denied.

E N T E R:

EMILY M. OLSHANSKY, J.F.C



Footnotes

Footnote 1:

Ward v San Diego County Dept. of Social Services,691 F Supp 238 (SD Cal 1988) (guardian ad litem appointed to represent children has absolute quasi-judicial immunity); Kurzawa v Mueller, 732 F2d 1456 (6th Cir 1984) (guardian ad litem is entitled to absolute immunity in action brought by parents individually and on behalf of their son alleging violation of their civil rights and common-law malpractice); New Jersey Div. of Youth and Family Services v S.A.M., 2007 WL 4055845 (NJ Super AD) (a parent does not have standing to raise the issue of whether a child has received appropriate legal representation); In re B.L., 2005 WL 615642 (Ohio App 10 Dist) (parent lacks standing to bring an ineffective assistance of counsel claim since the error is not prejudicial to their rights); Offutt v Kaplan, 884 F Supp 1179, 1192 (ND Ill 1995) (guardian ad litem has absolute immunity); In re A.G., 2006 WL 2303011 (Cal App 4 Dist)(a parent does not have standing to raise the issue of whether a child's counsel was ineffective since such claims relate to the children and do not affect her personal rights); In re Frank L., 81 Cal App 4th 700 (Cal App 4 Dist 2000) (a parent does not have standing despite her claim that her interests were intertwined with the child's interest since this factor does not establish standing; to have standing, a parent must show how the alleged conflict affects her rights and the mere fact that a parent takes a position which affects her children is insufficient to establish standing); In re Rebecca L., 2002 WL 1938959 (Cal App 4 Dist) (to have standing to raise the issue of whether a minor's attorney provided ineffective assistance of counsel, a parent must be an aggrieved party; a parent does not have standing to raise issues not affecting the parent's own rights); In re Daniel H.,99 Cal App 4th 804 (Cal App 4 Dist) (child's counsel's advocacy, or lack thereof, did not affect the parent's interests; a parent must show that counsel's alleged conflict actually affected the parent's interests); In re Tyler R., 2002 WL 1608441 (Cal App 4 Dist) (a parent does not have standing to raise the issue of whether a child's counsel was ineffective).

Footnote 2: See also King v King, 266 AD2d 546 (2d Dept 1999) (absent evidence that the Law Guardian had an actual conflict of interest or had failed to diligently represent the best interests of the child, the trial court improvidently exercised its discretion in granting the motion to relieve the Law Guardian); Petkovsek v Snyder, 251 AD2d 1087 (4th Dept 1998) (trial court providently exercised its discretion in denying petitioner's request to appoint a new Law Guardian where the record did not support the parent's allegations that the Law Guardian failed to diligently represent the best interests of the child or that he engaged in intentional misconduct); Zirkind v Zirkind, 218 AD2d 745 (2d Dept 1995) (there was no evidence that the Law Guardian had a conflict of interest or failed to diligently represent the best interests of the children, therefore, the trial court properly exercised its discretion in denying the parent's motion to disqualify the Law Guardian); Maurer v Maurer, 243 AD2d 989 (3d Dept 1997) (parent's motion to disqualify the Law Guardian denied where parent failed to present any viable evidence indicating a conflict of interest or a failure to diligently represent the child's best interest); Smith v Smith, 241 AD2d 980 (4th Dept 1997) (the trial court did not improvidently exercise its discretion in denying the parent's motion to disqualify the Law Guardian where the record did not support the contention that the children had conflicting interests precluding their joint representation).

Footnote 3: See also, In re Michael DD., 33 AD3d 1185 (3d Dept 2006) (Law Guardian was not ineffective for failing to cross-examine witnesses called to corroborate the victim's testimony because their testimony was at variance with the victim's and did not establish the elements of the crime, accordingly, respondent suffered no actual prejudice from the claimed deficiencies); In re Ashley L., 22 AD3d 915 (3d Dept 2005) (to establish ineffective assistance a party must demonstrate that she suffered actual prejudice as a result of the claimed deficiencies); In re Jonathan LL., 294 AD2d 752 (3d Dept 2002) (respondent's contention that he was deprived of the effective assistance of counsel rejected where respondent failed to demonstrate that he received less than meaningful representation and that he suffered actual prejudice as a result of the claimed deficiencies).

Footnote 4: Although the Family Court Act § 241 provides that the Law Guardian is appointed to "represent" the child and "to help protect (the child's) interests and to help them express their wishes to the court," the statute does not explain how a Law Guardian "represents" a child, or define what a child's "interests" might be. The responsibilities of a Law Guardian vary according to the intelligence, experience, mental condition or age of the child. When a child is too young to make considered judgments, the Law Guardian has additional responsibilities. They must "consider all circumstances then prevailing and act with care to safeguard and advance the interests of the client." In the end, any disability that "renders [the client] incapable of making a considered judgment" requires the lawyer to make decisions on behalf of the client and to advocate in a manner consistent with the lawyer's own conclusions concerning the child's best interests. No longer bound by a client's stated position, the Law Guardian must make decisions concerning matters affecting the child's long-term interests. In order to arrive at a position, the Law Guardian should ascertain and consider all relevant facts, and then exercise discretion in good faith and to the best of the lawyer's ability. (Solomon, Gary S., 10 New York Family Court Practice § 2:13 [Nov. 2007], Role of Counsel in Abuse and Neglect Proceedings—The Law Guardian; Sobie, Merril, Representing Child Clients: Role of Counsel or Law Guardian, NYLJ, Oct. 6, 1992, p. 1, col. 1; see also New York State Bar Association's Committee on Children & the Law, Standards for Attorneys Representing Children in New York Child Protective, Foster Care, and Termination of Parental Rights Proceedings [2007], which attempt to clarify the proper role of the child's attorney or law guardian. Standard A-4 governs the use of substituted judgment. In formulating substituted judgment, the Law Guardian "[m]ust conduct a thorough investigation, including interviewing the child, reviewing the evidence and applying it against the legal standard applicable to the particular stage of the proceeding." Similarly the New York State Bar Association's Law Guardian Representation Standards (Vol II: Custody Cases [1992]) is premised on the view that Law Guardians will make an independent investigation and express the child's view. "When the child is too young to articulate his or her wishes or provide assistance to counsel, the Law Guardian must of course determine the child's interest independently" (Commentary to Standard B-2, at 22-3).