Lead Opinion
{¶ 2} On February 16, 2006, Dennis was charged with receiving stolen property, a violation of R.C.
{¶ 3} An adjudication hearing was held on May 25, 2006. At the hearing Ms. McCrosky, Dennis' parents, and the investigating officer, Officer Janek, testified for the state of Ohio. The trial court found Dennis to be delinquent at the conclusion of the hearing.
{¶ 4} The trial court then immediately proceeded to a dispositional hearing. After taking testimony from the probation officer, the trial court committed Dennis to the Ohio Department of Youth Services for a minimum of six months and a maximum to age 21.
{¶ 5} Dennis has timely appealed and raises the following three assignments of error:
{¶ 6} "[1.] The juvenile court committed reversible error when it failed to аppoint a guardian ad litem in violation of R.C.
{¶ 7} "[2.] Phillip Dennis' adjudication and commitment must be reversed and remanded for a new trial because his adjudication is against the manifest weight of the evidence.
{¶ 8} "[3.] The trial court abused its discretion when it committed Phillip Dennis to the Ohio Department of Youth Services." *3
{¶ 9} In the first assignment of error, Dennis argues that a conflict of interest exists between him and his parents and that a guardian ad litem should have been appointed by the trial court.
{¶ 10} "[A]n abuse of discretion standard applies to the juvenile court's decision to appoint a guardian ad litem. * * * The relevant question on appeal is whether the record reveals an actual or potential conflict of interest which required the appointment of a guardian ad litem."1
{¶ 11} R.C.
{¶ 12} "(A) The court shall appoint a guardian ad litem, subject to rules adopted by the supreme court, to protect the interest of а child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when either of the following applies:
{¶ 13} "* * *
{¶ 14} "(2) The court finds that there is a conflict of interest between the child and the child's parent, guardian, or legal custodian."
{¶ 15} Juv.R. 4(B) provides, in pertinent part, as follows:
{¶ 16} "(B) Guardian ad litem; when appointed. The court shall appoint a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile court proceeding when:
{¶ 17} "* * * *4
{¶ 18} "(2) The interests of the child and the interests of the parent may conflict;
{¶ 19} "* * *
{¶ 20} "(8) Appointment is otherwise necessary to meet the requirements of a fair hearing."
{¶ 21} The mandate under Juv.R. 4(B) differs from that of R.C.
{¶ 22} On the date of the adjudication hearing, Dennis was 17 years of age.
{¶ 23} At the hearing, McCrosky testified that her purse was stolen on February 7, 2006.
{¶ 24} James Dennis, Dennis' father, testified that hе found items belonging to McCrosky in Dennis' top dresser drawer in his bedroom on February 13, 2006. He discussed this matter with his wife, Sandra Dennis, the matter was reported to Dennis' probation officer and to the police, and the police responded that day. Additional items belonging to McCrosky were located under Dennis' bed a week later. The police were again contacted concerning these additional items.
{¶ 25} Officer Janek testified that he had taken a statement from McCrosky on the day she reported her purse was stolen, that he took possession of McCrosky's property from Dennis' parents, аnd that McCrosky identified those same items as the contents of her purse that was stolen on February 7, 2006. *5
{¶ 26} At the conclusion of the adjudication hearing, the trial court made a finding of true as to the delinquency charge of receiving stolen property. The court then immediately proceeded to the dispositional phase of the hearing.
{¶ 27} Dennis argues that the record clearly reflected that a conflict of interest existed between Dennis and his parents: "[t]he parents initiated contact with juvenile court authorities; they testified against [Dennis]; and they did not want him back in their home." We agree that a conflict of interest existed.
{¶ 28} "In the context of a delinquency proceeding, a parent's speaking out against the child's penal interest raises a colorable claim of conflict. * * * That colorable claim of conflict requires a `thorough inquiry' by the juvenile court to determine whether а conflict of interest exists such that the court must appoint a guardian ad litem."3
{¶ 29} We note that the record does not reflect that Dennis requested the appointment of a guardian ad litem. However, because the provisions of R.C.
{¶ 30} On a plain error analysis, this court noted that "the [juvenile's] failure to object does not preclude a reversal based upon the juvenile court's failure to appoint a guardian ad litem."6 In addition, this court has held that "the absence of an objection does not preclude a reversal due to the juvenile court's failure to appoint a guardian ad litem when required under R.C.
{¶ 31} We further note that, though counsel was appointed to represent Dennis, the role of a guardian ad litem differs from that of counsel. As stated by the Supreme Court of Ohio:
{¶ 32} "The duty of a lawyer to his client and the duty of a guardian ad litem to his ward are not always identical and, in fact, may conflict. The role of a guardian ad litem is to investigate the ward's situation and then to ask the cоurt to do what the guardian feels is in the ward's best interest. The role of the attorney is to zealously represent his client within the bounds of the law."8
{¶ 33} Further, in a case similar to the instant case, this court has stated that "a juvenile court's failure to find a conflict and appoint a guardian ad litem when the parent оr guardian initiated the delinquency proceedings represented an abuse of discretion."9 Thus, where, as in the instant case, a conflict of interest exists, the trial court has the duty to appoint a guardian ad litem. Failure to do so in this case constituted an abuse of discretion. *7
{¶ 34} The first assignment of error has merit.
{¶ 35} For the reasons statеd in the analysis under the first assignment of error, the remaining assignments of error are moot, because this matter is being returned to the trial court for a new adjudicatory hearing.
{¶ 36} The judgment entry of the trial court is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion.
MARY JANE TRAPP, J., concurs,
DIANE V. GRENDELL, J., dissents with Dissenting Opinion.
Notes
Dissenting Opinion
{¶ 37} The majоrity reverses appellant, Phillip Dennis', delinquency adjudication on the grounds that a guardian ad litem should have been appointed for him. This result is not mandated by the case law pertinent to this issue. The majority obviously disagrees with the juvenile court's failure to appoint Dennis a guardian ad litem. Under the cirсumstances of this case, however, that decision was well within the juvenile court's discretion. Under the applicable deferential standard of review, the juvenile court's decision should be affirmed.
{¶ 38} The Revised Code provides as follows: "The court shall appoint a guardian ad litem, subject to rules аdopted by the supreme court, to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or *8
unruly child when * * * [t]he court finds that there is a conflict of interest between the child and the child's parent, guardian, or legal custodian." R.C.
{¶ 39} In like manner, the Rulеs of Juvenile Procedure provide: "The court shall appoint a guardian ad litem to protect the interests of a child * * * when * * * [t]he interests of the child and the interests of the parent may conflict." Juv.R. 4(B)(2).
{¶ 40} "While the plain language of the rule mandates that the possibility that interests `may conflict' suffice[s], `the juvenile court is in the best position to weigh the relevant facts in determining whether a potential conflict of interest exists between the parent and child.' * * * Therefore, an abuse of discretion standard applies to the trial court's decision whether to appoint a guardian ad litem. * * * Thus, the relevant question herе is whether the record * * * `reveals a strong enough possibility of conflict of interest between [the legal guardian] and the child to show that the juvenile court abused its discretion [by not appointing a guardian ad litem]'." In re Spradlin,
{¶ 41} Accordingly, there is no "hard and fast rule that requires the appointment of a guardian ad litem in every case." In re Wilson, 4th Dist. No. 04CA26,
{¶ 42} In the present case, the record does not reveal an actual or potential conflict of interest bеtween Dennis and his parents. *9
{¶ 43} The majority bases its determination that a conflict exists on the erroneous supposition that Dennis' parents "initiated the delinquency proceedings" against him. In fact, Dennis's parents did not initiate proceedings against Dennis. They merely reported to the police that thеy had found items, such as a checkbook, driver's license, and prescription medicine, in Dennis' room which obviously belonged to another person. These items were turned over to the police. Dennis' parents did not turn Dennis in to the police. They did not allow the police to search Dennis' roоm. They never confronted Dennis about these items or inquired how they came to be in Dennis' room. The simply turned over to the police items of personal property that did not belong to them or to Dennis.
{¶ 44} The actual proceedings against Dennis were initiated by the Ashtabula Police Department. Thе complaining witness was Saundra McCroskey. Thus, it is misleading to say that Dennis' parents initiated the proceedings.
{¶ 45} This fact distinguishes the present case from the authority relied upon by the majority. In In re Cook, 11th Dist. No. 2003-A-0132,
{¶ 46} In contrast, Dennis' parents were neither the victims of the alleged crime nоr the complaining witnesses. They testified at trial about the items they found in Dennis' room, but they testified under subpoena, not as voluntary witnesses.
{¶ 47} Many courts have held that where a parent or guardian merely testifies against a juvenile's penal interest, no conflict arises so as to require appointment оf a guardian ad litem in the absence of other evidence of adverse interests. In re Becerra, 8th Dist. No. 79715,
{¶ 48} In In re Howard (1997),
{¶ 49} Likewise, in the present proceedings, the record is devoid of evidence of hostility or animosity on the part of Dennis' parents or evidence that they acted to prejudice his penal interests, such as by dеnying Dennis counsel or recommending commitment. Cf. K.B.,
{¶ 50} The only evidence of hostility alluded to by the majority is that Dennis' parеnts did not want him back in their home. This statement is not supported by the record. Dennis' parents did not testify regarding their personal feelings toward Dennis or whether he would be allowed home, and made no recommendation regarding the disposition of this case.11 *12
{¶ 51} Dennis' trial counsel reported Dennis' mother as indicating Dennis would be allowed back in the home but that Dennis "wish[es] to establish himself independently." Dennis' probation officer also testified to this effect, noting that Dennis is almost eighteen-years-old and that he would benefit from "an independent living program."
{¶ 52} In sum, the law does not require a guardian ad litem be appоinted merely because Dennis' parents testified against his penal interest. Nor do the facts of this case suggest any conflict of interest between Dennis' parents and Dennis best interests. There are no cases where an adjudication has been reversed for failure to appoint a guardian аd litem in circumstances such as these. Our standard of review is a deferential one, abuse of discretion. The juvenile court's judgment should be affirmed.