Free Letter - District Court of Delaware - Delaware

Case 1:O7—cv-00600-JJF Document 31 Filed 04/17/2008 Page 1 of 2
M °
OITIS JBIHCS LLP
James H. McMackin, III
$02.8885849
jmcmackin@mo1·risjames.com
April 17, 2008
VIA E-FILING
The Honorable Joseph J. F arnan, Jr.
United States District Court
District of Delaware
844 North King Street
Wilmington, DE 19801
RE: Smith, et al., v. State 0f Delaware, et al.
Case N0. 07-600-JJF
Dear Judge Faman:
This letter is in response to Mr. Durstein’s letter on behalf of his clients, Delaware
Division of Family Services ("DFS") and Kathleen Firm ("Firm") (collectively, "Defendants"),
filed on April 11, 2008. In his letter, Mr. Durstein addressed his concerns with respect to
Richard Galperin’s representation of Plaintiffs Diane Smith ("Smith"), A.K., S.K., and M.K.,
(collectively, the "Children") (Smith and Children, collectively the "Plaintiffs") and his
contention that the Children should be represented by a guardian ad litem.
This is not the type of case where it would be necessary for the Children to be
represented by a separate guardian ad litem. Pursuant to 13 Del. C. § 701(c), "Any child who is
the subject of a custody, visitation, guardianship, termination of parental rights, adoption or other
related proceeding in which the Division of Family Services is a party should have a guardian ad
litem appointed by the Court to represent the best interests of the child." The present proceeding
does not fall under the purview of 13 Del. C. §701(c); therefore, no guardian ad litem is
required.
Additionally, Federal Rule of Civil Procedure l7(c) provides that a general
guardian may sue on behalf of a minor. The mle also provides that a minor may be represented
by a guardian ad litem if he or she is tmrepresented. The court’s power to appoint a guardian ad
litem for a minor under Rule 17(c) is restricted to cases where the minor or incompetent is "not
otherwise represented" in the action. See, e. g., Croce v. Bromley Corp., 623 F .2d 1084, 1093
(5th Cir. 1980) (where the Court did not appoint a guardian ad litem because the infant was
"otherwise represented" by the child's legal guardian, his mother, who brought this action on his
behalf). Similarly, in the present case, Smith is the Children’s natural guardian as their Mother
and brings suit on behalf of the Children. See 13 Del. C. § 701(a). There is no need for the
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Case 1 :07-cv-00600-JJF Document 31 Filed 04/17/2008 Page 2 of 2
. Morr1s]amesLt.»
The Honorable Joseph J. F arnan, Jr.
April 17, 2008
Page 2
Children to have a guardian ad litem under FRCP l7(c). Furthermore, Smith and the Children’s
interests are aligned in the present proceeding and the Children are not prejudiced in any manner;
therefore, there is no need for the Children to have separate cotmsel. Smith and the Children’s
legal arguments relate to Defendants’ violation of their rights; therefore, there is no conflict
among their interests.
Lastly, the Delaware Family Court already resolved the issue regarding the
children’s custody and welfare and those matters are not at issue in the present case. Although
some of the facts from the Family Court proceeding may be relevant in the instant proceeding,
the legal arguments are completely different. The goal of the present proceeding is not to show
that Smith is entitled to have custody of her children. The Family Court already decided that
issue and rescinded custody of the Children to Smith. The goal of the present proceeding is to
demonstrate that Defendants violated Smith and the Children’s rights in initiating the Family
Court proceedings from the beginning.
Mr. Durstein further alleges that Mr. Galperin would be a witness to the present
proceedings; however, his statements are unfounded. Mr. Galperin does not have any first hand
knowledge of the facts in the present proceedings. Any statements that Mr. Galperin made in
prior proceedings were legal arguments in his capacity as an advocate for his client. Any
position that Mr. Galperin took during prior proceedings, consistent or inconsistent with the
allegations or facts in the present proceeding, cannot be considered as evidence. Mr. Durstein’s
allegations regarding Plaintiffs and Mr. Galperin’s alleged inconsistencies in the proceedings
have not been substantiated. Mr. Galperin’s role as an advocate on behalf Smith in negotiations
concerning the Dependency/Neglect proceedings does not make him a witness in the present
proceeding. Moreover, under Federal Rule of Evidence 408, "conduct or statements made in
negotiations" are inadmissible.
Respectfully,
tl _l1.3l1»M
J . McMackin, III
(,6:74 1T ;D. ¢/ 4.2 iv}
JHM/jam
cc: Ralph K. Durstein, III, Esquire (via e-filing)
James J. Maxwell, Esquire (via e-filing)
Donald Robert Kinsley, Esquire (via e-filing)
Richard Galperin, Esquire (via hand delivery)
Clerk of the Court (via e-filing)
1736783/1

Case 1:07-cv-00600-JJF

Document 31

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Case 1:07-cv-00600-JJF

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