         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: ______________

Filing Date: June 23, 2014

Docket No. 34,150

AGALELEI KIMBRELL, also known as
LILY KIMBRELL, by and through her next
friend and parent W. DAVID KIMBRELL,

       Plaintiff-Respondent,

v.

LORRAINE KIMBRELL and
KATHRIN KINZER-ELLINGTON,

       Defendants-Petitioners.

ORIGINAL PROCEEDING ON CERTIORARI
Barbara J. Vigil and Sarah M. Singleton, District Judges

Riley, Shane & Keller, P.A.
Courtenay Lee Keller
Tiffany L. Sanchez
Albuquerque, NM

for Petitioner Kathrin Kinzer-Ellington

Michael H. Schwarz
Santa Fe, NM

for Petitioner Lorraine Kimbrell

Gary W. Boyle
Santa Fe, NM

for Respondent

Bristol Family Law, L.L.C.
James E. Bristol, III
Santa Fe, NM

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Little, Gilman-Tepper, Batley & Leigh, P.A.
Tiffany Oliver Leigh
Albuquerque, NM

L. Helen Bennett, P.C.
Linda Helen Bennett
Albuquerque, NM

for Amicus Curiae the Family Law Section of the State Bar of New Mexico

Peter Henry Klages
Albuquerque, NM

Martinez, Hart & Thompson, P.C.
F. Michael Hart
Albuquerque, NM

for Amicus Curiae Pegasus Legal Services for Children

                                         OPINION

CHÁVEZ, Justice.

{1}     Petitioner Kathrin M. Kinzer-Ellington (Kinzer-Ellington) was appointed guardian
ad litem pursuant to Rule 1-053.3 NMRA to serve as an arm of the court in determining the
best interests of minor children whose parents were involved in a custody dispute. Kimbrell
v. Kimbrell, 2013-NMCA-070, ¶ 2, 306 P.3d 495, cert. granted, 2013-NMCERT-006. As
the case grew more and more contentious, W. David Kimbrell (Father) sued both Lorraine
Kimbrell (Mother) and the guardian ad litem in tort as next friend of his oldest daughter, Lily
Kimbrell (Lily), alleging that their conduct had injured the child. Id. ¶ 3. We granted
certiorari to determine whether a parent has standing to sue a Rule 1-053.3 guardian ad litem
during a pending custody proceeding. Intertwined with this question is whether a Rule 1-
053.3 guardian ad litem is absolutely immune from suit arising from the performance of his
or her duty—a question we answer first.

{2}     We hold that a Rule 1-053.3 guardian ad litem is protected by absolute quasi-judicial
immunity from suit arising from the performance of his or her duties unless the guardian ad
litem’s alleged tortious conduct is clearly and completely outside the scope of his or her
appointment. The custody court that appointed the guardian ad litem is the appropriate court
to determine whether the guardian ad litem’s alleged misconduct arose from acts clearly and
completely outside the scope of the appointment and, if so, the custody court should appoint
a guardian ad litem, other than a parent, pursuant to Rule 1-017(C) NMRA to represent the
child in any necessary litigation. A parent does not have standing to sue a guardian ad litem
appointed in a custody proceeding on behalf of the child because (1) the parent has been

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found to be unable to act in the best interests of the child, and (2) such a lawsuit would create
a conflict of interest in the custody case.

BACKGROUND

{3}     The long and contentious history of this domestic relations case is well documented
in the Court of Appeals’ opinion. Kimbrell, 2013-NMCA-070, ¶¶ 2-8. We do not need to
repeat all of the details of the disputatious history because the degree of contentiousness is
not relevant to the issues before us. Only the details of the appointment of the guardian ad
litem and of the lawsuit against the guardian ad litem are relevant.

{4}     Kinzer-Ellington was appointed guardian ad litem pursuant to NMSA 1978, Section
40-4-8 (1993) to assist the parties and the district court in determining the best interests of
the Kimbrells’ four minor children. Soon after Kinzer-Ellington issued her first report and
recommendations, the district court entered a stipulated order regarding child custody and
periods of responsibility that adopted most of Kinzer-Ellington’s recommendations and
discharged her from further service. However, Kinzer-Ellington was reappointed pursuant
to Rule 1-053.3 after problems continued between Father and Mother. The district court
specified her role and made clear that she served as an arm of the court pursuant to Rule 1-
053.3.

{5}     Following Kinzer-Ellington’s reappointment, Father refused to permit her to speak
with Lily; insisted on being present during meetings between Kinzer-Ellington and the
children or to have those meetings recorded; refused to execute authorizations for the release
of information regarding the children; filed five different motions to have Kinzer-Ellington
removed as guardian ad litem, each of which were denied; filed two disciplinary complaints
against Kinzer-Ellington, both of which were dismissed for lack of merit; sued Kinzer-
Ellington and others in federal court; and also sued Kinzer-Ellington and Mother in state
court, alleging tortious conduct. After one of Father’s motions to remove Kinzer-Ellington
as the guardian ad litem, the district court, apparently exasperated, entered the following
findings in denying the motion:

               3.      David Kimbrell’s January 8, 2010 Motion to Replace
        Guardian ad Litem continues to try to attack the guardian ad litem’s ability
        to provide independent representation of the parties’ children.

        ...

                5.      The guardian ad litem has maintained an objective view of
        this case and remains objective in exercising her role in this case.

               6.     David Kimbrell inappropriately views the guardian ad litem
        as an opponent in this matter.


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               7.     David Kimbrell’s continuing attacks on the guardian ad litem
        are becoming problematic to the administration of justice.

               8.    David Kimbrell’s continuing attacks on the guardian ad litem
        have become unfair and abusive.

{6}      The issue before us arises from the state court tort litigation. In that case, Father sued
Mother as next friend and parent of Lily, and later amended his complaint to include Kinzer-
Ellington as a co-defendant. Father alleged that Kinzer-Ellington breached her fiduciary
duty to Lily; invaded Lily’s privacy; committed prima facie tort; and caused intentional
infliction of emotional distress by, among other things, blocking contact between Lily and
her siblings.

{7}      Both Kinzer-Ellington and Mother filed motions to dismiss the tort action. The
district court took judicial notice of the voluminous family court file and the fact that Kinzer-
Ellington was appointed guardian ad litem under Rule 1-053.3 “due to the inability of either
parent to remain objective and agree on what is in the best interests of the child.” The
district court also found that Father “does not possess the necessary objectivity to make
decisions concerning the best interests of the child including whether a tort suit should be
brought on behalf of the child against the child’s mother and/or the guardian ad litem.” The
district court concluded that the best interests of the child and the appointment of the
guardian ad litem pursuant to Section 40-4-8 and Rule 1-053.3 “deprive the child’s parents
of standing to bring a tort suit on behalf of the child against the other parent and/or the
guardian ad litem.” The district court noted that the remedy for improper conduct on the part
of the guardian ad litem is removal in the underlying domestic relations proceeding. The
district court dismissed Father’s tort case with prejudice.

{8}     On appeal, the Court of Appeals reversed the district court, holding that “[u]nder our
law as it exists today, parents retain standing to sue their child’s guardian on behalf of their
child, subject to the guardian’s limited immunity as an arm of the court. We thus conclude
that Father has standing to assert the tort cause of action in this case.” Kimbrell, 2013-
NMCA-070, ¶ 19. With respect to immunity, the Court of Appeals acknowledged that a
guardian ad litem who acts as an arm of the court enjoys absolute immunity for conduct
within the scope of the appointment. Id. ¶ 21. However, pursuant to Collins ex rel. Collins
v. Tabet, 1991-NMSC-013, ¶ 10, 111 N.M. 391, 806 P.2d 40, the Court of Appeals employed
a functional approach to each of Father’s contentions to determine whether Kinzer-Ellington
allegedly exceeded the scope of her appointment, and held that with one exception—alleged
interference with communications between siblings—the alleged conduct fell within the
scope of Kinzer-Ellington’s appointment, entitling her to immunity. Kimbrell, 2013-NMCA-
070, ¶¶ 21, 31. This Court granted Kinzer-Ellington’s petition for writ of certiorari.1 We


        1
        Lily reached the age of majority before we granted certiorari. Lily argued that the
issue regarding her parents’ standing to sue on her behalf is now moot. Regardless, we

                                                4
now reverse the Court of Appeals and affirm the district court’s summary judgment in favor
of Kinzer-Ellington. We first discuss the issue of immunity and then the issue of standing.

STANDARD OF REVIEW

{9}    The Court of Appeals reviewed the district court’s order as an order granting
summary judgment. Id. ¶ 10. The Court of Appeals determined that Kinzer-Ellington’s
motion to dismiss Father’s tort lawsuit for lack of standing was converted into a motion for
summary judgment because the district court took judicial notice of matters in the underlying
divorce and custody proceedings and considered pleadings from those proceedings attached
to Kinzer-Ellington’s motion to dismiss. Id. ¶ 9. Orders granting summary judgment are
reviewed de novo. Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242
P.3d 280. Whether a party has standing to sue is a question of law, which is also reviewed
de novo. See San Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶ 8, 150
N.M. 64, 257 P.3d 884.

DISCUSSION

{10} In 2006, this Court adopted a rule to define the duties of a guardian ad litem to serve
in custody disputes. Rule 1-053.3 (adopted 2006, amended 2007). A Rule 1-053.3 guardian
ad litem is a “ ‘best interests attorney’ ” who provides independent services without being
bound by the child’s or another party’s directives or objectives and who must make findings
and recommendations to the court regarding the best interests of the child. Rule 1-053.3(C).

A Rule 1-053.3 guardian ad litem has absolute quasi-judicial immunity from suit
arising from the performance of his or her duties

{11} In Collins, we held that a guardian ad litem acting as an arm of the “court is
absolutely immune from liability for his or her actions taken [within the scope of] the
appointment.” 1991-NMSC-013, ¶ 14. The rationale for granting absolute immunity is to
prevent the guardian ad litem’s work from being compromised by the threat of liability,
which in turn could impair the judge’s own performance. Id. ¶ 26.

{12} In Collins, one example we gave of a guardian ad litem entitled to absolute immunity
was a guardian ad litem whose responsibility was to conduct a factual investigation and
make recommendations to the court regarding the placement of a child consistent with the
best interests of the child. Id. ¶ 22 (citing Ward v. San Diego Cnty. Dep’t of Soc. Servs., 691


believe that the issues in this case are capable of repetition and are matters of substantial
public interest. We therefore proceed to decide the merits of this case. See Gunaji v.
Macias, 2001-NMSC-028, ¶ 10, 130 N.M. 734, 31 P.3d 1008 (holding that “this Court may
review moot cases that present issues of substantial public interest or which are capable of
repetition yet evade review”).

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F. Supp. 238, 240 (S.D. Cal. 1988)). In Ward, the guardian ad litem was given access to all
of the child’s records, and was notified of and authorized to attend all conferences and
hearings regarding the child in order to carry out her responsibilities. 691 F. Supp. at 240.
When the father sued the guardian ad litem, alleging that she acted outside the scope of her
appointment, the Ward court granted summary judgment to the guardian ad litem, holding
that she had absolute quasi-judicial immunity from liability. Id. at 241. The rationale of the
Ward court was three-fold. See id. at 240-41. First, the guardian ad litem was acting as an
arm of the court. Id. at 240. Second, the threat of civil liability could impair the guardian
ad litem’s ability to independently investigate and report the facts to the court, thereby
obstructing the pathway to ascertaining the truth and impairing the judge’s ability to perform
his or her judicial duties. Id. Third, procedural safeguards—the guardian ad litem serves
at the discretion of the court, the court is not bound by the guardian’s recommendations, and
the parents may appeal—are available to protect against misconduct, making the threat of
civil litigation unnecessary. Id. at 240-41. The guardian ad litem in Ward would not have
enjoyed absolute quasi-judicial immunity had her actions been clearly and completely
outside the scope of her appointment. Id. at 240 n.1.

{13} We find the analysis in Ward persuasive with respect to guardians ad litem who are
appointed pursuant to Section 40-4-8 and Rule 1-053.3. Like the guardian ad litem in Ward,
a Rule 1-053.3 guardian ad litem “serves as an arm of the court and assists the court in
discharging its duty to adjudicate the child’s best interests,” Rule 1-053.3(A), and “shall
provide independent services to protect the child’s best interests without being bound by the
child’s or either party’s directive or objectives and who shall make findings and
recommendations.” Rule 1-053.3(C). The guardian ad litem is authorized to interview the
parents, the children outside the presence of the parents, the child’s therapists, and other
witnesses at the guardian ad litem’s discretion, and is also given access to relevant records.
Rule 1-053.3(F)(1).

{14} The function of Rule 1-053.3 guardians ad litem is without question to act as an arm
of the court, and they are therefore entitled to absolute quasi-judicial immunity from liability
for the performance of their duties. In addition to concerns about intimidation tactics or the
fear of being sued by a disgruntled parent, there are procedural safeguards available in New
Mexico that make the threat of litigation an unnecessary check on the conduct of a Rule 1-
053.3 guardian ad litem, such as the guardian ad litem’s service at the discretion of the court,
Rule 1-053.3(A) (a court may appoint a guardian ad litem); the court’s ability to limit the
role of the guardian ad litem, Rule 1-053.3(B); and the parties’ ability to object to the
recommendations of the guardian ad litem, Rule 1-053.3(G)(2).

{15} In addition, like the Ward court, we conclude that absolute quasi-judicial immunity
does not protect a Rule 1-053.3 guardian ad litem who acts clearly and completely outside
the scope of his or her appointment. What actions may constitute a clear and complete
departure from the scope of appointment are too difficult to predict. An obvious example
discussed during oral argument arises when the guardian ad litem negligently operates a
motor vehicle, legally causing injury to a child. However, where the conduct in question is

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related to communications between the guardian ad litem and the children, parents,
therapists, other witnesses, or the gathering of information for the purpose of making
recommendations to the court, then the conduct is not clearly and completely outside the
scope of the appointment and the guardian ad litem is protected by absolute immunity.

{16} The Court of Appeals employed the functional analysis announced by the Collins
court to determine whether each alleged act of misconduct by Kinzer-Ellington was done
within the scope of her appointment. See Kimbrell, 2013-NMCA-070, ¶¶ 21, 28. In a
functional analysis, “a limited factual inquiry is necessary to determine the nature of [the
guardian ad litem’s] appointment and the extent to which he [or she] functioned within the
scope of that appointment.” Collins, 1991-NMSC-013, ¶ 42.

{17} The Collins court applied a functional analysis because it was not clear from the
record whether the guardian ad litem was appointed as an arm of the court or as a conflict
lawyer/guardian ad litem to evaluate a settlement involving a minor. Id. ¶¶ 27, 29, 44.
When a guardian ad litem is appointed pursuant to Rule 1-053.3, it is very clear that the
guardian ad litem is an arm of the court. The appointing court is in the best position to
determine whether the guardian ad litem has clearly and completely acted outside the scope
of his or her appointment. Therefore, a parent concerned about potential misconduct by the
guardian ad litem must bring the matter to the attention of the appointing court, which is also
the custody court. The appointing court shall exercise discretion in conducting whatever
hearing it deems necessary to decide whether sufficient evidence exists to support a good
faith allegation that the guardian ad litem exceeded the scope of his or her appointment. If
such evidence does exist, the court may take whatever action it deems necessary regarding
the guardian ad litem by, for example, limiting his or her duties or removing him or her from
service. In addition, if the court finds evidence sufficient to support a good faith basis that
the guardian ad litem clearly and completely acted outside the scope of his or her
appointment and may have caused injury to a child, the court shall appoint a different
guardian ad litem to act as an attorney for the child pursuant to Rule 1-017(C) to pursue
whatever action he or she deems necessary. Although this approach deviates from the
approach taken by the Collins court, the approach we announce today is consistent with the
best interests of children involved in custody disputes and with the procedures and
confidentiality requirements of Rule 1-053.3.

A parent in a custody dispute does not have standing to sue, on behalf of a child, a Rule
1-053.3 guardian ad litem who does not have absolute immunity

{18} Our resolution of the immunity question leaves the potential for a Rule 1-053.3
guardian ad litem to be sued. The question that remains is whether a parent in a pending
custody case may sue the guardian ad litem on behalf of a child. We hold that a parent does
not have standing to bring such a lawsuit because the custody court has already determined
that the parent is incapable of acting in the best interests of the child. In addition, to allow
the parent to sue the guardian ad litem creates a conflict of interest and the potential for
interference with the administration of justice in both the custody proceeding and the tort

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action. Even in the obvious example where a guardian ad litem negligently operates a motor
vehicle causing injury to the child, a parent who is allowed to sue on behalf of the child may
not act in the best interest of the child regarding settlements or other important strategies just
to spite or intimidate the guardian ad litem. For this reason, we have already indicated that
in an appropriate case, the custody court should appoint a guardian ad litem for the child
under Rule 1-017 to pursue any necessary litigation.

{19} Our holding is consistent with how other jurisdictions have approached the issue.
See Bluntt v. O’Connor, 291 A.D.2d 106, 113, 114 (N.Y. App. Div. 2002) (holding that a
mother lacked standing to bring a claim either on behalf of a child or individually against the
guardian ad litem because such a suit would interfere with the guardian ad litem appointment
and create a conflict of interest); State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 380 (Mo.
Ct. App. 1993) (holding that appointment of a guardian ad litem in a custody case supersedes
a parent’s natural guardianship in areas of a custody disputes as long as the appointment
lasts). The Bird court set forth a detailed analysis of the standing issue:

        the underlying suit is an independent tort action brought by Father on behalf
        of the children seeking to obtain injunctive relief and money damages.
        Nevertheless, the factual allegations of the petition and the nature of the
        relief sought would appear to fall squarely within the areas of interest in the
        Juvenile Court proceeding in which Guardian was appointed. . . . Further,
        although Father does not expressly seek Mr. Bird’s removal as guardian ad
        litem as part of the relief requested in the underlying suit, the mere assertion
        of a claim for money damages against him by his clients could very well
        accomplish the same result by posing an inherent conflict of interest.
        Removal of a guardian ad litem, however, is a matter vested in the sound
        discretion of the appointing court, in this case the Juvenile Court for the City
        of St. Louis. . . . Would suits and countersuits brought in the name of the
        children become the new weapon of choice in the arsenal of estranged
        couples? Thus, at least with respect to the claims asserted against Mother
        and Guardian, there is substantial reason to question Father’s standing to
        maintain the underlying suit.

Bird, 864 S.W.2d at 380-81 (emphasis added) (footnote omitted) (internal citations omitted).
The procedure we have outlined safeguards the best interests of the child, while preserving
and protecting the important role of a Rule 1-053.3 guardian ad litem.

The guardian ad litem in this case is absolutely immune from suit for the alleged
tortious conduct because her conduct was not clearly and completely outside the scope
of her appointment

{20} The Court of Appeals “reverse[d] the district court’s summary judgment solely with
regard to claims involving the [guardian ad litem]’s alleged involvement with Mother in
blocking [Lily]’s phone calls to her siblings.” Kimbrell, 2013-NMCA-070, ¶ 31. We have

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already held that the custody court is the appropriate court to determine whether the guardian
ad litem’s alleged misconduct arose from acts clearly and completely outside the scope of
her appointment.

{21} However, because of the protracted nature of this litigation and what we consider to
be the adequacy of the record before us, we conclude that even if Kinzer-Ellington, together
with Mother, blocked calls between siblings, such actions are not clearly and completely
outside the scope of her appointment. Guardians ad litem have the responsibility to
interview a number of different participants in custody battles with the goal of ascertaining
the truth. In this case, Kinzer-Ellington was ordered to interview the children outside the
presence of the parents and the attorneys. In such a contentious case, particularly given
Father’s efforts to have the children make false reports of abuse against Mother,
Kinzer-Ellington had the discretion to control the communications between the children until
she completed her investigation. As a result, Kinzer-Ellington is also absolutely immune
from being sued for the alleged collusion with Mother in controlling the communications
between siblings in this case.

CONCLUSION

{22} The guardian ad litem cannot be sued for the alleged misconduct because her actions
cannot be said to be clearly and completely outside the scope of her appointment. Therefore,
absolute quasi-judicial immunity applies to the guardian ad litem in this case. The Court of
Appeals is reversed and the district court’s summary judgment in favor of Kinzer-Ellington
is affirmed.

{23}   IT IS SO ORDERED.

                                              ____________________________________
                                              EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
CAMILLE MARTINEZ OLGUIN, Judge
Sitting by designation

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