IN RE: A.K., T.K., M.K., A.K.
C.A. No. 26291
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 28, 2012
[Cite as In re A.K., 2012-Ohio-4430.]
MOORE, Judge.
STATE OF OHIO COUNTY OF SUMMIT ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 11-02-126 DN 11-02-127 DN 11-02-128 DN 11-02-129
MOORE, Judge.
{1} Appellant, Kandis A. (“Mother“), appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that placed four of her minor children in the legal custody of a paternal aunt. Because the trial court failed to appoint a guardian ad litem to represent the best interests of the children, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion.
I.
{2} Mother is the natural mother of A.K., born October 27, 2001; M.K., born January 26, 2003; T.K., born July 2, 2004; and A.K., born February 2, 2006. Although Mother also has a younger child who was involved in the trial court proceedings, he is not at issue in this appeal.
{3} On February 22, 2011, Summit County Children Services Board (“CSB“) filed complaints, alleging that Mother‘s four children were dependent due to Mother‘s inability to
{4} Mother further agreed to the requirements of the case plan. The reunification goals of the case plan focused, in part, on Mother addressing her drug and alcohol use, her impulsive behavior, and her involvement with the criminal justice system. On July 15, 2011, CSB moved for a change of disposition from temporary custody with the aunt to full legal custody with the aunt. It alleged that Mother had been arrested and was facing felony charges for aggravated drug possession. The agency further maintained that Mother had made minimal progress on the goals of her case plan and had informed the agency that she was unable to care for the children at that time.
{5} On August 9, 2011, the trial court received a letter from Mother that expressed opposition to CSB‘s motion. Because she was still incarcerated, Mother requested permission to participate in the legal custody hearing either via video conference or through arranged transportation to the courthouse. Mother also requested that the trial court appoint counsel to represent her at the hearing. Mother emphasized her desire to participate in the hearing so that she could “speak with [her] counsel to know the best way to be able to keep [her] children only in temporary custody.”
{6} Mother appeared at the hearing, with counsel, and testified in opposition to the motion. Mother testified that her criminal charges had been resolved, she would not be going to prison, and would soon be released from jail. She explained that she had started to work on the
{7} Following the hearing, the magistrate recommended that the trial court place Mother‘s four children in the legal custody of the aunt. The magistrate found that Mother had failed to adequately address the issues set forth in the case plan and that it was in the best interests of the children to be placed with the aunt.
{8} Mother filed objections to the magistrate‘s decision. Among other objections, she argued that the trial court erred by failing to appoint a guardian ad litem to represent the best interests of the children and/or to ascertain the wishes of the children in camera. She further asserted that the evidence did not support the magistrate‘s best interest determination. The trial court overruled Mother‘s objections, adopted the magistrate‘s decision, and entered judgment. Mother appeals and raises two assignments of error. We will confine our review to her second assignment of error, as it is dispositive.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN NOT APPOINTING A GUARDIAN AD LITEM FOR THE []CHILDREN, WHICH PREJUDICED THE []CHILDREN‘S BEST INTEREST AND MOTHER‘S RIGHT TO PARENT HER CHILDREN.
{9} In her second assignment of error, Mother argues that the trial court erred by failing to appoint a guardian ad litem on behalf of the children. Although Mother did not raise this issue at the time of the hearing before the magistrate, she did specifically object to the magistrate‘s decision on this basis. Therefore, despite the agency‘s argument to the contrary, Mother has preserved the issue for appellate review. See
{10} Through her objections to the magistrate‘s decision, Mother argued that the trial court erred in failing to appoint a guardian ad litem pursuant to
{11} Mother asserts that the trial court erred in overruling her objection to the lack of a guardian ad litem because it had improperly based its best interest determination solely on the testimony of the caseworker and the aunt, both of whom who were directly interested in the outcome of these proceedings. She argues that the fundamental fairness of these contested legal custody proceedings required that the trial court be informed about the children‘s best interests by a neutral and detached guardian ad litem. We agree.
{12} Generally, this Court reviews a trial court‘s action with respect to a magistrate‘s decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. No. 24150, 2008-Ohio-5232, ¶ 9. However, “[i]n so doing, we consider the trial court‘s action with reference to the nature of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. No. 08CA0049-M, 2009-Ohio-3139, ¶ 18. Here, the assignment of error challenges the trial court‘s failure to appoint a guardian ad litem pursuant to the mandatory requirements of
{¶13} We begin by emphasizing that the circumstances of this case are somewhat unusual because CSB filed complaints in this case that alleged only that the children were dependent pursuant to
{¶14} In cases alleging only dependency, however, the requirement to appoint a guardian ad litem for the children is less clear.
{¶15} As stated in
Conflict between Mother and the Children
{16}
{17} We can find no reason why these constructions of the “conflict” language in
{18} To determine whether the requisite “conflict” existed within the context of this dependency case, it is helpful to consider the rationale for conditioning the requirement of a guardian ad litem on the existence of a conflict between child and parent. Requiring the demonstration of a conflict presumes that, in most families, the interests of the child and parent will be aligned, because the parent naturally loves and nurtures her child and is in the best position to protect and represent the child‘s best interest. E.g., Maldonado, When Father (or Mother) Doesn‘t Know Best: Quasi-Parties and Parental Deference After Troxel v. Granville, 88 Iowa L.Rev. 865, 925 (2003). The constitutional right of a parent to raise and care for his or her child encompasses the notion that a “fit” parent will act in the best interest of the child. E.g., Troxel v. Granville, 530 U.S. 57, 65, 69 (2000). The Troxel court emphasized that, “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent‘s children.” Id. at 68-69.
{19} By removing Mother‘s children from her home and later adjudicating them as dependent children, however, the trial court implicitly determined that Mother was not a suitable parent and that she was not making decisions that were in the best interests of her children. See In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 22. A divergence between the interests of the children and parent will likely arise in most dependency cases if the children are removed from the parent‘s home, as, by that involuntary separation of the children from their parent and uncertainty about whether reunification will occur, “the potential exists for the interests of child[ren] and parent to diverge dramatically.” Ross, The Tyranny of Time: Vulnerable Children,
{20} In this dependency case, however, the record reveals that, at the beginning of the case, the interests of Mother and the children may not have been in conflict because Mother acknowledged her inability to meet the needs of the children and agreed to the removal and temporary custody arrangement with the aunt. Mother stipulated to the adjudications of dependency and agreed that the children should be temporarily placed with the aunt.
{21} The strong possibility of a conflict between the interests of the children and Mother became apparent on the record, however, after CSB filed the motion for legal custody and Mother informed the trial court that she was opposed to that permanent disposition. Mother sent a letter to the court to request that she be permitted to appear at the hearing, with appointed counsel, to oppose the motion. At that point, Mother was focused on opposing the motion and protecting her own parental rights, a position that did not necessarily represent her children‘s best interests. Through Mother‘s written opposition to the legal custody motion, the record demonstrates that there was the strong possibility of a conflict between the interests of the
Fair Hearing
{¶22} In addition to the apparent conflict between the interests of the children and Mother, a guardian ad litem was necessary to protect the fundamental fairness of the legal custody hearing. Mother focused her argument on
{¶23} Although a disposition of legal custody is less drastic than permanent custody because it does not completely sever parental rights, it “potentially terminates a parent‘s constitutional right to custody of her child[ren] because that placement “‘is intended to be permanent in nature.‘” In re A.A., 9th Dist. No. 25253, 2010-Ohio-5735, ¶ 7, quoting
{¶24} Certainly, the children should also be afforded analogous procedural protections at a legal custody hearing. Had this been a hearing on a permanent custody motion, the appointment of a guardian ad litem would have been explicitly mandated by
{¶25} In addition to the fact that a legal custody hearing has permanent implications for the children and this family, unlike a hearing on a permanent custody motion, there is no specific statutory “test” to guide the trial court‘s legal custody decision. See, e.g., In re N.P., 9th Dist. No. 21707, 2004-Ohio-110, ¶ 23, citing In re Fulton, 12th Dist. No. CA2002-09-263, 2003-Ohio-5984, ¶ 11. Although it is agreed that the “best interest” of the children will control, courts have looked to the best interest factors of
{¶26} In this case, the trial court indicated that it had applied the best interest factors set forth in
{27} Rather than receiving evidence about the children‘s wishes or best interests from a guardian ad litem or any of the children themselves, the only evidence before the court came from the testimony of the CSB caseworker, the aunt, and Mother, none of whom was authorized to speak on behalf of the children. This Court emphasized in In re Smith, 9th Dist. No. 20711, 2002 WL 5178, *5-6 (Jan. 2, 2002), that only the guardian ad litem is authorized to testify on behalf of the children and express their wishes and desires. Moreover, although the guardian ad litem is permitted to express the wishes of the children through statements made by the children, the court‘s consideration of other out-of-court statements may not be used to prove the truth of the matters asserted, but, instead, may be used for the limited purpose of informing the court as to why the guardian reached his recommendation. See Sypherd v. Sypherd, 9th Dist. No. 25815, 2012-Ohio-2615, ¶ 12-13.
{28} The only evidence about the children came from the testimony of the caseworker, the aunt, and Mother, each of whom was interested in the outcome of the legal custody hearing. As this Court further stressed in Smith, the guardian ad litem has the significant role of bringing a viewpoint to the trial court at a dispositional hearing that is “neutral and detached from the parties” to the case. Smith at *6. The explicit role of the guardian ad litem is to investigate the children‘s best interests as an impartial outsider to the proceedings and assist the trial court in determining whether a dispositional order is in their best interests. Sup.R. 48(A), (B)(1), and (D). The court in Myer emphasized the unique role of the guardian ad litem and the importance of the guardian‘s impartial voice to the determination of best interest of the children at dispositional proceedings. “The guardian ad litem is not simply a legal mechanic” but has the
{29} Because the trial court failed to consider any evidence from a guardian ad litem or the children directly, the children were denied their right to have a voice at this dispositional hearing that determined their permanent placement. Consequently, we cannot conclude that the trial court‘s failure to appoint a guardian ad litem was harmless error. Compare In re N.G., 9th Dist. No. 12CA010143, 2012-Ohio-2825, ¶ 28 (holding that the absence of evidence of child‘s wishes was not reversible error in permanent custody appeal because there was substantial evidence on the remaining mandatory factors and the guardian ad litem had investigated the case and had given a report to the trial court about the child‘s best interests); In re Todd, 7th Dist. No. 06-JE-35, 2007-Ohio-1410, ¶ 25-26 (holding that the failure to appoint guardian ad litem due to conflict of interest between child and parent was not plain error because the magistrate interviewed the child in camera).
{30} Given the circumstances in this case, we must conclude that the trial court committed reversible error by failing to appoint a guardian ad litem to represent the best interests of the children. At the latest, a guardian should have been appointed for the children when CSB moved to have the children placed in the legal custody of the aunt and Mother contested that motion. At that point, a conflict between the interests of the children and Mother became apparent and it was also necessary to the fairness of the contested legal custody hearing that the children‘s best interests be thoroughly investigated and reported to the court by a neutral and detached guardian ad litem. Accordingly, Mother‘s second assignment of error is sustained.
ASSIGNMENT OF ERROR 1
THE DECISION OF THE TRIAL COURT TO PLACE THE K. CHILDREN IN THE LEGAL CUSTODY OF [AUNT] WAS AGAINST THE BEST INTEREST OF THE K. CHILDREN.
{31} Based upon our disposition of Mother‘s second assignment of error, her first assignment of error has been rendered moot and we need not address it.
III.
{32} Mother‘s second assignment of error is sustained. Her first assignment of error was not addressed because it is moot. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J. CONCURS.
BELFANCE, J. CONCURRING IN JUDGMENT ONLY.
{33} I concur in the judgment of the majority. I would reverse and remand the matter for the trial court to consider in the first instance whether there is a conflict of interest between the child and the child‘s parent within the meaning of
APPEARANCES:
MADELINE LEPIDI-CARINO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
GREGORY A. PRICE, Attorney at Law, for Appellee.