2009-227, Appeal of Jeffrey Oligny

Jeffrey Oligny

(New Hampshire Guardian ad Litem Board)

Board considers issues of domestic violence to be a serious Due to the nature of the work of a Guardian ad Litem, the No. 2009-227

Guardian ad Litem Board party. In its letter the board stated: involving domestic violence as well as a divorce case to which he had been a information regarding two cases in the Rockingham County Superior Court petitioner’s experience and work with children. It also sought additional letter to interview with it, indicating that it needed to clarify the nature of the application for certification to the board. Thereafter, the board invited him by The record contains the following facts. The petitioner submitted his

for certification as a guardian ad litem. We affirm. the New Hampshire Guardian ad Litem Board (board) denying his application BRODERICK, C.J. The petitioner, Jeffrey Oligny, appeals a decision of

Michael A. Delaney

general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as guardian ad litem applicant review process. The redacted copy of the p. 2 of his divorce decree, but asserted that it was not required as part of the qualified as “activities dealing with children.” He also provided a redacted copy that his experience there met the requirements of the board’s rules because it and volunteer experience, which included his NCFC experience, and asserted The petitioner responded by letter. He submitted a log of his professional

same of anyone applying. . . .

unless such a situation arises, in which case we would ask the disqualification for certification. We do not ask for divorce orders

the board would have to decide whether this would be a without reviewing the divorce orders. If this is the situation, then has no way of knowing if this is what occurred in your case

volunteer activities dealing with children or incapacitated adults. See bachelor’s degrees have at least three years of experience in professional or (NCFC) for over five years fulfilled the board’s requirement that applicants with sometimes felt this was a preferable course of action. The board public policy director for the National Congress for Fathers and Children orders are permanent and restraining orders are not, so the court The petitioner responded in writing, stating that he believed his experience as that there would be one set of orders rather than two. Also divorce restraining orders and to then put them into the divorce orders, so

Board. It was the custom of courts, and sometimes still is, to dismiss

feel is pertinent, which would alleviate the concerns of the 2 board observed: “any other documentation” pertinent to the domestic violence allegations, the to its earlier request that the petitioner submit a copy of his divorce decree and “directly with children” and involving “interact[ion] with children.” With regard that he needed to submit a log of professional and volunteer experience dealing not believe that his NCFC experience fulfilled the requirements of its rules, and In response to the petitioner’s letter, the board informed him that it did

copy of the divorce orders and any other documentation you

allegations. We would request that you supply us with a

ad Litem [applicants].” divorce decree, which he contended was “not a requirement [for] all Guardian clarification of the board’s concerns, especially why it wanted a copy of his restraining orders previously entered against him. Rather, he requested decree or any additional information regarding the domestic violence Admin. Rules opportunity to clarify your history involving these, Gal 303.01(c)(1) (2007). He did not provide a copy of his divorce N.H.

matter. Therefore, we would like to afford you the requirement that an applicant demonstrate direct work with children. p. 3 petitioner’s additional argument that his work for NCFC satisfied the document,” was not unjust or unreasonable. Therefore, we need not reach the his divorce decree despite a request from the Board that he provide the entire frank information to the Board, specifically by providing only a redacted copy of demonstrate that “he is of good character in that he failed to provide full and Clearance. We hold that the board’s finding that the petitioner failed to character in light of his United States Department of Defense Security of law, and that the board erred in failing to find him to be a person of good The petitioner argues that the board’s findings are erroneous as a matter

to resolve conflict. This appeal followed. restraining order and because the restraining order itself reflected an inability upon the petitioner’s failure to provide complete information about the board’s finding regarding the petitioner’s inability to resolve conflict was based and frank” information, namely, an unredacted copy of his divorce decree. The character,” the board found that the petitioner had failed to provide it with “full demonstrate direct work with children. With respect to the issue of “good Hampshire Administrative Rules, Gal 303.01(c), which requires an applicant to constructive way”; and (3) his work for NCFC met the requirements of New good character; (2) he is “able to resolve conflict and work with people in a finding that he failed to meet his burden to prove that: (1) he is a person of Thereafter, the board denied the petitioner’s application for certification, evidence of his United States Department of Defense Security Clearance. board issued its decision, the petitioner was granted permission to submit denial of his application. After the hearing was conducted, but before the The petitioner requested that the board hold a hearing to reconsider its

constructive way” in light of the existence of a restraining order against him. have concerns about the petitioner’s abilities “to work with people in a or professional activities dealing “directly with children”; and (2) it continued to the board’s requirement that applicants demonstrate engagement in volunteer and stating, among other things, that: (1) the log he submitted did not meet Shortly thereafter, the board sent the petitioner a letter denying certification

any way subject the other party to liability for any debt or debts. Neither party shall contract in the name of the other party or in shall interfere with the personal liberties of the other party. premises occupied by the [petitioner’s former wife]. Neither party

[T]he petitioner is enjoined and restrained from entering any

language of the restraining order, which provided: petitioner’s divorce decree consisted of the caption, the preamble, and the p. 4 “respect for the rights of others and for the law, fairness, trustworthiness and we have stated that among the essential aspects of “good character” are required to possess “good moral character.” RSA 311:2 (2005). In that context, note, however, that to be admitted to practice law in this state, an applicant is Neither the statute nor the rules define the term “good character.” We

eligibility requirements and criteria for certification, see 4 forth, among other things, the application process for certification, and the accordance with RSA 490-C:5, I (a), (c), the board has adopted rules setting . . . for the certification . . . of guardians ad litem.” RSA 490-C:4, I (a), (c). In chapter 541 (2007). See certified and in good standing” and to “[e]stablish requirements [and] criteria Appeals from decisions of the board are brought pursuant to RSA “[c]ompile and maintain a list of those guardians ad litem statewide who are board.” RSA 490-C:1 (2010). Among other duties, the board is required to guardians ad litem in New Hampshire who are or have been certified by the The board oversees “the credentialing and activities, and discipline of and reasonable. Id. unreasonable.” Id. The board’s findings of fact are deemed prima facie lawful preponderance of the evidence before it, that such order is unjust or vacated except for errors of law, unless the court is satisfied, by a clear unlawful. See RSA 541:13. The board’s decision will “not be set aside or the burden to prove that the decision of the board is clearly unreasonable or

RSA 490-C:5-a, I; N.H. Admin. Rules, Gal 303.01(h). certification, an applicant must be, among other things, of “good character.” Application, Certification and Practice Rule 1.1. To be eligible for initial 300 et. seq., which this court has adopted by reference. See System-Wide GAL

RSA 461-A:16, II. be attorneys, guardians ad litem do agree to serve as officers of the court. See N.H. 252, 256 (1987). Although New Hampshire law does not require them to process. See Ross v. Gadwah, 131 N.H. 391, 394 (1988); Place v. Place, 129 reaching a prompt and fair determination, while minimizing acrimony in the best interests of the child, he or she also assists the court and the parties in 2009). Although a guardian ad litem serves primarily as an advocate for the determination of parental rights and responsibilities. RSA 461-A:16, I (Supp. parties in proceedings for divorce, separation, annulment, paternity, or may appoint a guardian ad litem to represent the interests of the children of of a minor or an incompetent in a case before the court”). For example, a court ad litem” is defined as “a person appointed by the court to protect the interest 2009) (in statute governing proceedings to terminate parental rights “guardian Black’s Law Dictionary 774 (9 ed. 2009); see also RSA 170-C:2, VI (Supp. th court to appear in a lawsuit on behalf of an incompetent or minor party.” A guardian ad litem is “[a] guardian, usu. a lawyer, appointed by the material in order to determine an applicant’s qualifications. N.H. Admin. p. 5 decree. The board’s rules authorize it to request additional information or board did not have the authority to request an unredacted copy of his divorce Furthermore, we find unpersuasive the petitioner’s argument that the

do so as part of his application for certification as a guardian ad litem. he failed to provide full and frank information to the board when requested to petitioner failed to demonstrate that he is a person of “good character” because We hold that the record amply supports the board’s conclusion that the concerns about the existence and nature of the restraining orders against him. decree, despite the fact that the board sought it in order to alleviate its the conclusion that he refused to provide an unredacted copy of his divorce The petitioner’s actions during the proceedings before the board support

circumstances that gave rise to the restraining order. to a restraining order, but the redacted decree otherwise shed no light on the redacted copy of his divorce decree which made clear that he was still subject 5 this would disqualify him for certification. Thereafter, the petitioner provided a whether he was currently subject to any restraining order, and, if so, whether Ad Litem, the Board considers issues of domestic violence to be a serious divorce decrees. The board informed the petitioner that it wanted to know was the custom of courts to dismiss restraining orders and include them in the of the restraining order because “[d]ue to the nature of the work of a Guardian Rules that it was requesting a copy of the divorce orders because it recognized that it, Gal 302.01(c). The board was justifiably concerned about the existence nature and circumstances of the restraining orders. The board then clarified board explained why it was necessary, and was not forthcoming about the The petitioner initially declined to provide a copy of the divorce decree until the documentation” he felt was pertinent to “alleviate” the concerns of the board. of domestic violence, and to provide copies of the divorce orders and “any other prompted the board to ask him to “clarify” his history involving the allegations cases relating to domestic violence and to one relating to divorce. This The petitioner’s application indicated that he had been a party to two

to serve as a guardian ad litem. whether an applicant has demonstrated that he is of sufficient “good character” we believe that these considerations are also instructive in determining Because a guardian ad litem, like an attorney, serves as an officer of the court, information to the committee or its staff. See Sup. Ct. R. 42B (VII) (5). among other things, an applicant’s failure to cooperate with or to provide applicant be denied admission to the bar for lack of character and fitness for, and Fitness of the Supreme Court of New Hampshire may recommend that an (quotation omitted). We also note that the Standing Committee on Character administration of justice.” Application of T.J.S., 141 N.H. 697, 699 (1997) reliability, and a professional commitment to the judicial process and the p. 6 Affirmed

had failed to demonstrate that he was a person of good character. restraining order, the board did not err when it concluded that the petitioner unredacted copy of his divorce decree or other information regarding the existence of the restraining order and the petitioner’s failure to provide an independent determination of the petitioner’s character. In light of the record that the board weighed the evidence before it and came to an ignored the security clearance evidence, but conclude from our review of the dispositive of the question. We do not agree with the petitioner that the board clearance may be evidence of the petitioner’s good character, it is not United States Department of Defense Security Clearance. While the security him not to be of good character in light of the evidence he submitted of his We also disagree with the petitioner that the board erred when it found

decree as a refusal to provide the entire divorce decree it had requested. board did not err in construing the applicant’s submission of the redacted alleviate the concerns of the board. Under the circumstances of this case, the violence allegations, and to provide “any other documentation” which would specifically invited the petitioner to “clarify [his] history” involving the domestic additional information. This is particularly true where the board had already suggests that the board is obligated to continue to issue further requests for with the State, however, that nothing in the rules or RSA chapter 490-C pursuant to New Hampshire Administrative Rule, Gal 302.01(c). We agree board should have issued a subsequent request for additional information incomplete. According to the petitioner, upon receipt of the redacted copy, the

DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred.

divorce decree, he was never notified that his submission was considered erred as a matter of law because, after he submitted the redacted copy of the We are also unpersuaded by the petitioner’s argument that the board

unredacted copy of the decree. unlawful for the board, under the circumstances of this case, to request an relevant to the restraining order, we conclude that it was not unreasonable or family faces, and because such a narrative could contain a recitation of facts narratives related to the history of the family, and any issues or problems the

of the unredacted divorce decree. Because divorce decrees may contain 738, 742-43 (2007), and, therefore, requested that the petitioner provide a copy orders and incorporate them into divorce decrees, see In re Peirano, 155 N.H. matter.” The board also recognized the custom of courts to dismiss restraining