{¶ 3} Amber and Josie were placed with their maternal great aunts, and a case plan for eventual reunification was established for appellant and her children. The plan required that appellant 1) obtain a mental health diagnostic assessment and follow all recommendations and directions; 2) participate in a parenting assessment and follow all recommendations; and 3) obtain suitable and safe housing. At a dependency hearing on November 14, 2002, appellant was represented by counsel.1 The complaint was amended, and appellant consented to a finding of dependency and neglect. The temporary custody of Amber and Josie was awarded to LCCS. A rights hearing was also held on December 4, 2002, after LCCS obtained service on Juan G., father of Amber and the putative father of Josie. Juan G. did not respond to the complaint and did not appear for the hearing.2
{¶ 4} On June 20, 2003, LCCS filed a motion for permanent custody. The motion alleged that the girls could not or should not be returned to either parent within a reasonable time and that permanent custody was in their best interest. The motion averred that appellant was low functioning and had failed to demonstrate the ability to provide adequate parenting skills, to complete counseling to alleviate mental health issues, and to obtain stable housing. A permanent custody trial began on January 13, 2004 and resumed on March 29, 2004. After all the evidence had been submitted, the trial court awarded permanent custody of Amber and Josie to LCCS pursuant to R.C.
{¶ 6} Appellant argues that the trial court erred when it failed to follow the mandates of R.C.
{¶ 8} require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, public confidence in, judicial proceedings." Id. "In an appropriate case, however, a reviewing court can find plain error when the trial court has failed to appoint a guardian ad litem and such failure results in prejudice to the party in need of a guardian." In re Holmes (Feb. 15, 2001), 8th Dist. No. 77785.
{¶ 10} "(C) In any proceeding concerning an alleged or adjudicated delinquent, unruly, abused, neglected, or dependent child in which the parent appears to be mentally incompetent or is under eighteen years of age, the court shall appoint a guardian ad litem to protect the interest of that parent.
{¶ 11} "* * *
{¶ 12} "(E) A parent who is eighteen years of age or older and not mentally incompetent shall be deemed sui juris for the purpose of any proceeding relative to a child of the parent who is alleged or adjudicated to be an abused, neglected, or dependent child."
{¶ 13} Juv.R. 4(B)(3) contains similar provisions and states:
{¶ 14} "(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:
{¶ 15} "* * *
{¶ 16} "(3) The parent is under eighteen years of age or appears to be mentally incompetent."
{¶ 17} The first inquiry in determining whether the trial court complied with R.C.
{¶ 18} Appellant argues that the only person who recognized her need for a guardian ad litem was the magistrate at the shelter care hearing. She contends that the trial court should have realized she needed a guardian ad litem when several witnesses described her as low functioning or somewhat retarded and very depressed. Although she did not have the psychiatric evaluation as recommended after her diagnostic assessment, appellant contends that her disability has been officially recognized by Social Security from which she receives SSI. LCCS responds that appellant's attorney stated on the record that appellant understood the nature of the proceedings and the agreement to stipulate to a finding of neglect and dependency and that appellant acknowledged she understood what was happening.
{¶ 19} It is simply the appearance of mental incompetence and not an actual finding of such that triggers the requirement of the appointment of a guardian ad litem under R.C.
{¶ 20} In In re Isaac M., 6th Dist. No. L-03-1097,
{¶ 21} In appellant's case, paragraph eight of the complaint in dependency and neglect alleged that she was low functioning and received Social Security for this disorder. At the shelter care hearing, the magistrate asked about this statement and ultimately appointed an attorney/guardian ad litem after the following exchange:
{¶ 22} "THE COURT: Thank you. Number eight, do we have any idea what that level refers to?
{¶ 23} "[LCCS CASEWORKER]: From what I asked of both mother and grandmother that's all they said. They were never clear.
{¶ 24} "THE COURT: They haven't been tested?
{¶ 25} "[APPELLANT]: I have, yes.
{¶ 26} "THE COURT: By whom?
{¶ 27} "[APPELLANT]: By social security. What I get from social security is for my disability. Because for one I am not — I don't want to be — I am not real good at writing and my mom can tell you the rest.
{¶ 28} "[GRANDMOTHER]: She is slow. She has a disability on slowness, and she does have anger or —
{¶ 29} "* * *
{¶ 30} "THE COURT: Well, the reason I was asking is because I can appoint a guardian for you if you are — if they felt that you were not able to make a decision or just an attorney. And I needed to know whether or not the level of function was such that you need a guardian in order to help you make decisions. That's what — that's what I am asking.
{¶ 31} "[GRANDMOTHER]: She has — I am her payee, and that's why she was living with me. Because she needs somebody to help her."
{¶ 32} In addition, the children's guardian ad litem stated in her report that appellant has mental delays and, although 28 years old, gives the impression of someone who is 13 or 14. The children's guardian ad litem further noted that appellant did not have much skill with handling finances or schedules and appeared to be very impulsive in making decisions. A case plan review also stated that appellant would not benefit from group therapy due to her functioning ability.
{¶ 33} Finally, the testimony at the disposition hearing revealed that appellant was being treated for depression and appeared to have limited intelligence. The LCCS caseworker stated that appellant had previously been linked to MRDD services on several occasions prior to LCCS's involvement. The caseworker explained that MRDD was not made part of the case plan because appellant had failed to obtain a psychiatric evaluation which would have helped LCCS assess whether she needed those services.
{¶ 34} We are troubled that although the magistrate at the shelter care hearing determined that an attorney/guardian ad litem should be appointed for appellant, nothing further happened. The record shows sufficient indication that appellant appeared to be mentally incompetent and that a guardian ad litem should have been appointed for her.
{¶ 35} Even though the trial court erred by not appointing a guardian ad litem for appellant, this does not end the inquiry. "The failure to appoint a guardian ad litem does not constitute reversible error where no request for a guardian ad litem is made or the party cannot show prejudice." In re King-Bolen, supra. As previously stated, R.C.
{¶ 36} In In re Alyssa Nicole C.,
{¶ 37} Similarly, in In re Love (Dec. 21, 1990), 6th Dist. No. L-89-359, this court found that the appellant had not established she had been prejudiced by the 15 to 20 minute absence of her guardian ad litem during the testimony of the LCCS caseworker. The evidence in Love was overwhelming in support of LCCS's obtaining permanent custody, and we noted that the appellant had been adequately protected because she had been represented by counsel throughout the entire dispositional hearing.
{¶ 38} Appellant has not pointed to anything in the record to show how she was prejudiced by the failure to have a guardian ad litem and also has not argued how having a guardian ad litem would have altered the outcome. She instead appears to argue that prejudice should be presumed. Several districts, however, have declined to presume prejudice in juvenile proceedings. See, Inre Anderson, supra at ¶ 9; In re McQuitty (May 5, 1986), 12 Dist. No. CA85-04-016. Instead, "an alleged error is not prejudicial for purposes of plain error review unless, `but for the error, the outcome of the trial clearly would have been otherwise.' State v. Long (1978),
{¶ 39} From the record, it is evident that appointment of a guardian ad litem would not have remedied appellant's failure to comply with her case plan and would not have improved her parenting abilities or enabled her to bond with her children. Both the program coordinator for the East Toledo Family Center and the LCCS parenting educator testified that appellant had problems appropriately interacting with Amber and Josie. They stated that appellant would often scream at or reprimand the children when she became stressed or frustrated with them. There was also testimony that appellant would socialize with other clients rather than interact with her girls. The parenting educator stated that appellant did not successfully complete the parenting program because she could not demonstrate that she would use the parenting skills taught on a consistent basis.
{¶ 40} The LCCS caseworker testified that, in addition to not successfully completing the parenting program, appellant did not complete a psychiatric evaluation and did not obtain suitable housing as required by the case plan. She stated that appellant has had six to seven different addresses since 2002. The caseworker and two Toledo police officers testified that appellant has moved in and out of her current husband's trailer after domestic disputes, even after allegations her husband has threatened her to kill her.
{¶ 41} Appellant's therapist testified that she anticipated maintaining appellant in therapy for depression for a least another year. Counseling undergone the year before had been unsuccessful because appellant had been homeless. The children's therapist testified that the girls expressed fear about returning to their mother and recommended that appellant's visitation with the girls be suspended because they often acted out after being with their mother. The children's therapist also stated she was working with Amber on boundary issues, sexual abuse issues, and behavioral issues.
{¶ 42} Furthermore, the trial court found that additional R.C.
{¶ 43} Appellant's sole assignment of error is not well-taken. The judgment of the Lucas County Court of Common Pleas, Juvenile Division is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the court costs of this appeal.
Judgment Affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Handwork, P.J., Lanzinger, J., Singer, J. Concur.