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October 5, 1993



The opinion of the court was delivered by: Crahan

Relator, John R. Bird ("Guardian"), guardian ad litem for two minor children in a separate pending child custody proceeding involving allegations of child sexual abuse, seeks a writ of prohibition against Respondent, the Honorable Kenneth Weinstock, commanding him to dismiss an action filed against Guardian by the minor children's father ("Father"), individually and in his alleged capacity as the children's parent and natural guardian, alleging legal malpractice by Guardian in his representation of the children in the custody suit. Guardian maintains that he is entitled to judicial immunity with respect to his actions as court appointed guardian for the minor children in the custody action and that Respondent is therefore acting in excess of his jurisdiction in refusing to dismiss the legal malpractice claims against him for failure to state a claim for which relief can be granted. Guardian's claim of immunity presents an issue of first impression in Missouri. We hold that Guardian is entitled to immunity for his discretionary actions as court appointed guardian ad litem which are alleged as the basis for relief and therefore order that our preliminary writ heretofore issued be made permanent.

Factual Background

The marriage of Father and the minor children's mother ("Mother") was dissolved by order of the Circuit Court of Madison County, Illinois in October, 1986. Custody of the couple's two sons born in 1982 and 1983 was awarded to Mother and Father was awarded rights of temporary custody and visitation. In May, 1987 the Illinois decree was registered in the Circuit Court of the City of St. Louis and Mother moved to modify the decree, although the specific relief sought is not disclosed by the record before us. Father and Mother subsequently filed cross motions for contempt. The court found Mother in contempt, apparently for depriving Father of his right to visitation, and found Father innocent of contempt with respect to payment of child support.

In July, 1987, Father filed a motion for temporary modification of custody, alleging sexual abuse of both boys by Mother's new husband ("Stepfather") while in Mother's presence. In response to such allegations, the court entered an order transferring temporary custody to Father and ordered that the children be evaluated at Cardinal Glennon Children's Hospital. The following day, the court amended its order and granted full custody to Father pending a hearing and directed appointment of a guardian ad litem for the children. Rita Montgomery was subsequently appointed as guardian ad litem on the court's own motion. In August, 1987, the parties and the children were ordered to submit to psychological evaluation.

In September, 1987, pursuant to a motion filed by a deputy juvenile officer, the court modified its custody order and transferred custody of the children to Mother's sister and brother-in-law, with directions that Mother's visits with the children be supervised by the Juvenile Court. In February, 1988, the court ordered custody transferred to the Division of Family Services ("DFS") so that the children could be placed in foster care. In August, 1988, the custody arrangements were further modified to permit visitation by either parent under the supervision of a deputy juvenile officer or an agent of DFS.

In February, 1989, after a lengthy hearing, the court entered an order awarding permanent custody of the children to Father, based on its determination that Stepfather had, in fact, sexually abused the children and that Mother was aware of such abuse and sought to conceal it. Mother was granted three hours supervised visitation per week. The court further ordered that Stepfather was not to be in the presence of the children or to have any contact with them whatsoever. Ms. Montgomery was discharged as guardian ad litem.

Thereafter, in May, 1989, based upon allegations that there had been contact between Stepfather and the children and that Stepfather had threatened them with bodily harm, the court modified its previous custody order to provide that Mother was to have no further contact with the children. The court further ordered that the cause be transferred to the Juvenile Division of the court. *fn1

In February, 1990, Relator John R. Bird was appointed guardian ad litem for the children by the Juvenile Court. Father moved for termination of Mother's parental rights and Mother moved for modification of custody. Father's motion was overruled. Father also requested that the Juvenile Court refer the matter to the Circuit Attorney's office for prosecution. This request was denied, the court noting that any party had the right to pursue such matters directly with the Circuit Attorney. The court also granted Mother's request for a home study by a deputy juvenile officer.

Thereafter, during 1991 and 1992, the parties engaged in a series of legal skirmishes, including multiple unsuccessful attempts by Father to obtain extraordinary relief from this court and the Missouri Supreme Court. Such disputes principally involved Father's attempts to force the Juvenile Court Judge to disqualify herself, motions to hold Father in contempt for interfering with court-ordered evaluation of the children involving supervised interaction with Mother, and, after the filing of the subject suit, the Juvenile Court's disqualification of Father's counsel, David L. Campbell (who filed the underlying suit allegedly on behalf of the children), from any further representation of Father in the Juvenile Court proceedings. Meanwhile, the Circuit Attorney's office brought criminal charges against Stepfather alleging sodomy upon the children. The first trial resulted in a hung jury and the second resulted in an acquittal.

Beginning in March 1992, the Juvenile Court ordered further supervised visitation by Mother. Although the date is not disclosed by the record before us, we were advised at oral argument that the Juvenile Court has subsequently transferred custody of the children to DFS.

The Underlying Suit

In October, 1992, Father filed the underlying lawsuit in the Circuit Court of St. Louis County. The caption of the petition indicates that the action is being brought by Father "individually and as parent and natural guardian" of the named minor children. The named defendants are Mother, Stepfather and Relator, John R. Bird. After alleging much of the foregoing history and describing the alleged acts of sexual abuse upon the minor children in graphic detail, Count I seeks to enjoin Mother and Stepfather from any further contact with the children and Count II seeks actual and punitive damages against Mother and Stepfather for assault and battery. Count III seeks actual and punitive damages against Guardian for "Professional Negligence." Count IV incorporates the prior factual allegations and seeks actual and punitive damages against all defendants on a theory of "Outrageous Conduct."

As to the claims against Guardian, Count III first incorporates the factual allegations concerning sexual abuse and prior court orders relating thereto, all of which, so far as is disclosed by the petition or the record before us, transpired prior to Relator's appointment as Guardian. The petition then alleges: (1) that Guardian is an attorney at law appointed to represent the interests of the minor children in connection with proceedings concerning custody and rights of visitation of their Mother; (2) that Guardian has had no contact with the children, has never talked with them, and refuses to talk with their Father or to conduct any independent investigation to verify their reports of sexual abuse by Stepfather; (3) that Guardian has been repeatedly advised of the children's consistent statements to various named authorities about sexual abuse by Stepfather; and (4) that Guardian has been repeatedly advised by medical authorities who have examined and treated the children that it is injurious to their health to have any contact with Mother or Stepfather. The petition then alleges:

Defendant BIRD has been professionally negligent in his representation of the plaintiffs and has failed to exercise the highest degree of care to represent and protect the interests of the plaintiffs before the Juvenile Division of the St. Louis County Circuit Court in the Custody Proceedings in that he knew and reasonably should have known of the matters set forth in paragraphs 5 through 19, inclusive of Count I hereof, and the fact that plaintiffs are suffering from mental and emotional illness and disturbance in the nature of Post Traumatic Stress disorder associated with the aforesaid physical, emotional and sexual abuse; that, in spite of knowledge of those matters set forth in paragraphs 4 and 5 above, defendant has knowingly and willingly caused, allowed and permitted defendant to obtain supervised visitation with plaintiffs, has failed to protest or appeal, or to otherwise represent plaintiffs before the trial or appellate courts with respect to orders entered in favor of defendant at the expense of plaintiffs and without notice or hearing or an opportunity for plaintiffs or their father to be heard with respect thereto; by causing, allowing and permitting interactive interviews between plaintiffs and to occur; by subverting and undermining the criminal prosecutions of defendant ; by aiding and assisting defendant in defending sodomy charges brought against him arising out of the aforesaid sexual abuse of plaintiffs; and by abandoning his representation of the interests of the plaintiffs in the Custody Proceedings in favor of aiding, abetting and assisting [Mother and Stepfather] in the furtherance of their interests, and by advocating the same; and by abandoning plaintiffs and assuring that they had no effective legal representation in the Custody Proceedings and no access to legal counsel.

Count III then alleges that such negligence by Guardian has aggravated the children's emotional disturbance and caused them to incur medical and legal expenses resulting in damages in excess of $1,000,000.00. Further, the petition alleges that Guardian's actions were ...

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