826 N.E.2d 356 | Ohio Ct. App. | 2005
{¶ 1} Joseph Slider appeals the decision of the Washington County Court of Common Pleas, Juvenile Division, finding him delinquent based on kidnapping in violation of R.C.
{¶ 3} At the time the offense occurred and throughout the delinquency process, Phyllis and Denny Gossett were Slider's legal guardians.1 Phyllis and Denny are also the parents of the victim. At the detention/shelter-care hearing, the trial court questioned both guardians. When asked about Slider's natural mother, Sabrina Gossett, Phyllis advised the court that "[s]he doesn't have anything to do with [Slider]." Phyllis also informed the court that she and her husband have legal care and custody of Slider because his mother fails to care for him and noted that Sabrina has blocked Phyllis and Denny's phone number from her home telephone. Phyllis told the court that she thought Slider should have an attorney but stated that neither she nor Denny would hire one for Slider and refused to take Slider home with them. Denny told the court that "[t]here's no help" for Slider.
{¶ 4} The trial court found Slider delinquent pursuant to R.C.
{¶ 5} After the trial court sentenced Slider, Phyllis informed the court that she and her husband wished to have their legal custody of Slider terminated. The trial court ordered that temporary custody be placed with Sandra and Ralph Blake, Slider's maternal grandmother and stepgrandfather, after Sabrina advised the court that she agreed and stated that she was unable to act as a temporary custodian because she has three other children.
{¶ 6} Slider appeals and raises the following assignments of error:
"I. The trial court violated Joseph Slider's right to due process by failing to exclude all witnesses in violation of Ohio Rule of Evidence 615, the
"II. The trial court violated Joseph Slider's right to due process by admitting hearsay evidence in violation of Ohio Rules of Evidence 801 and 802, the
"III. The trial court violated Joseph Slider's right to due process by admitting character evidence in violation of Ohio Rules of Evidence 401, 402, 403, and 404, the
"IV. Joseph Slider was denied the effective assistance of counsel as guaranteed by the
"V. The trial court violated Joseph Slider's right to due process under the
"VI. The trial court committed reversible error when it failed to appoint a guardian ad litem for Joseph Slider in violation of Ohio Revised Code Section
{¶ 8} Both R.C.
"The court shall appoint a guardian ad litem to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when either of the following applies:
"(1) The child has no parent, guardian, or legal custodian.
"(2) The court finds that there is a conflict of interest between the child and the child's parent, guardian, or legal custodian."
*163Juv.R. 4(B) provides:
"The court shall appoint a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile court proceeding when:
"(1) The child has no parents, guardians, or legal custodian; [or]
"(2) The interests of the child and the interests of the parent may conflict * * *."
{¶ 9} Because these provisions are mandatory, the failure of a court to appoint a guardian ad litem when these provisions require one constitutes reversible error. In re Howell (1991),
{¶ 10} A juvenile court should be more sensitive to potential conflicts of interest under Juv.R. 4(B)(2) when there is no other person to protect the interests and rights of the juvenile.Sappington,
{¶ 11} Here, Slider did not request a guardian ad litem or object to the trial court's failure to appoint a guardian ad litem. Ordinarily, rights are deemed waived if they are not raised before the trial court and will be enforced upon *164
appeal only if the error constitutes plain error. In reJohnson, Franklin App. No. 03AP-1264,
{¶ 12} Here, we find that the trial court abused its discretion when it failed to appoint a guardian ad litem or inquire further into whether a guardian ad litem was necessary. See Spradlin,
{¶ 13} Even without the actions of Phyllis and Denny at the adjudicatory and dispositional hearings, the trial court was on sufficient notice from its dialogue with them at the detention/shelter-care hearing to warrant either appointing a guardian ad litem or inquiring further into whether one was necessary. By that time, Slider's guardians had expressed a clear intention to distance themselves from him, and counsel did not represent him during the hearing. Therefore, the failure to appoint a guardian ad litem, or at least make further inquiry as to its necessity, was an abuse of discretion, even absent a request for a guardian ad litem or an objection to the failure to appoint one.
{¶ 14} It is true that Sabrina, Slider's mother, was present at the adjudicatory and dispositional hearings. However, Sabrina did not have legal custody of her son, and the trial court was informed by Phyllis at the detention/shelter-care hearing that Sabrina had had no involvement with him. Therefore, it was an abuse of discretion not to appoint a guardian ad litem even though Slider's natural mother was present at the hearings. This finding is buttressed by the fact that Slider's temporary legal custody was ultimately not placed with Sabrina. *165
{¶ 15} The trial court appointed counsel, who represented Slider at the adjudicatory and dispositional hearings. Nonetheless, appointment of trial counsel does not render the failure to appoint a guardian ad litem harmless error. Wilson,
supra,
Judgment reversed and cause remanded.
PETER B. ABELE, P.J., concurs.
McFARLAND, J., dissents.