2015 Ohio 4542
Ohio Ct. App.2015Background
- LCDJFS sought permanent custody of two children, N.P. (b. 2007) and E.M. (b. 2008), after earlier dependency/neglect findings and temporary custody placements.
- Attorney Darya Klammer was appointed guardian ad litem (GAL) for N.P. early; Klammer was later retroactively appointed GAL for E.M.; no separate or dual appointment as independent counsel was made for either child.
- At the April 2015 custody hearing, evidence showed both children repeatedly expressed a desire to return to their mother, though the GAL recommended permanent custody to LCDJFS. The court interviewed N.P. in camera but did not interview E.M. in camera.
- The juvenile court granted LCDJFS permanent custody and terminated the mother’s parental rights, finding certain witnesses (mother, maternal grandmother, great-aunt) not credible.
- On appeal the mother argued the court erred by failing to consider appointment of independent counsel for the children where a conflict between the children’s stated wishes and the GAL’s recommendation existed. The appellate court reversed and remanded for limited proceedings to determine need for independent counsel.
Issues
| Issue | Pease's Argument | LCDJFS's Argument | Held |
|---|---|---|---|
| Whether the children required independent counsel in the permanent-custody proceeding | Children repeatedly wanted reunification; GAL recommended state custody, creating a conflict that warranted independent counsel | No explicit request for independent counsel; court could rely on GAL and its factual credibility findings; independent counsel not necessary absent case-specific showing | Reversed and remanded: trial court must determine on the record whether independent or dual counsel for each child is required (considering maturity and any conflict); if counsel is required, new hearing must be held. |
Key Cases Cited
- In re Williams, 101 Ohio St.3d 398 (Ohio 2004) (child in parental-termination proceedings is a party and may be entitled to independent counsel in certain circumstances)
- In re Hayes, 79 Ohio St.3d 46 (Ohio 1997) (parental rights are a fundamental liberty interest entitled to full procedural protections)
- In re Hoffman, 97 Ohio St.3d 92 (Ohio 2002) (permanent termination of parental rights likened to the death penalty; strict procedural safeguards required)
- In re Baby Girl Baxter, 17 Ohio St.3d 229 (Ohio 1985) (explaining potential conflict in dual appointment of GAL and counsel)
- In re Gault, 387 U.S. 1 (U.S. 1967) (juvenile due process principles requiring counsel and fair procedures)