{¶ 1} This appeal requires us to determine when a juvenile court must appoint counsel for a child who is the subject of a proceeding to terminate parental rights. For the reasons that follow, we affirm the judgment of the Geauga County Court of Appeals on the certified issue.
I
Facts and Procedural History
{¶ 2} In June 2000, in response to a complaint filed by appellant, Geauga County Job and Family Sеrvices,
{¶ 3} The juvenile court returned Malcolm to appellee’s custody in September 2000, under appellant’s protective supervision. That same month, the juvenile cоurt found Shaquille to be a neglected and dependent child and ordered appellant to continue protective supervision over Shaquille. In October 2001, the juvenile court determined, for a second time as to Malcolm and for the first time
{¶ 4} Appellant moved for permanent custody of both Malcolm and Shaquille in March 2002. The juvenile court held a four-day hearing, and on June 5, 2002, the court granted the motion for permanent custody as to both children and terminated the parental rights of appellee and Larry Williams.
{¶ 5} The court of appeals vacated the trial court’s order granting permanent custody to appellant and remanded the cause for further proceedings. In re Williams, 11th Dist. Nos. 2002-G-2454 and 2002-G-2459,
{¶ 6} In light of the above facts, the court of appeals found that the juvenile court had erred in failing to consider whether Malcolm was entitled to counsel to represent his interests. Id. at ¶ 27. The court held, “[W]hen a child consistently expresses a desire to be with a parent, then a juvenile court should investigate, giving due regard to the child’s maturity and understanding of the proceedings, and make a ruling about whether an attorney should be appointed to represent the child’s interest and expressed wishes.” Id. at ¶ 26. This court declined discretionary review of that decision.
{¶ 7} The juvenile court, on remand, appointed an attorney to represent Malcolm and Shaquille but only for the limited purpose of “fil[ing] a response to the motion for permanent custody stating the position оf the child[ren] with respect to permanent custody.” Based in part on the attorney’s filings, which were little more than a statement indicating Malcolm’s desire to live with his mother and Malcolm’s reasons and a statement by the attorney that due to Shaquille’s age, the attorney was unable to determine Shaquille’s wishes, the court, without first holding a hearing, ruled that there was no need to аppoint counsel to fully represent Malcolm’s or Shaquille’s interests. The court reinstated its prior decision that both children should be placed in the permanent custody of appellant.
{¶ 9} The court of appeals found that its holding regarding the appointment of counsel for the children was in conflict with the decision of the Second District Court of Appeals in In re Alfrey, Clark App. No. 01CA0083,
{¶ 10} ‘Whether children who are the subject of a motion to terminate parental rights are ‘parties’ to that proceeding for the purposes of Juv.R. 4(A) and R.C. 2151.352, requiring the appointment of counsel.” In re Williams,
II
Resolution of the Certified Issue
{¶ 11} The court of appeals remanded this cause to the juvenile court on two separate grounds — the first involving the appointment of counsel for the children and the second concerning whether adequate proof supported the juvenile court’s determination that the requirements for granting permanent custody to appellant were met. The court of appeals’ holding that the trial court must hold a new permanent-custody hearing based on the second ground for reversal is not within the scope of our review. Therefore, regardless of how we resolve the certified issue, a new permanent-custody hearing must be held. This appeal focuses only on the certified issue concerning the appointment of counsel for children who are the subject of proceedings to terminate parental rights.
{¶ 12} The approach taken by the court of appeals in this сase followed the approach taken by most Ohio courts of appeals that have encountered similar situations regarding the appointment of counsel for juveniles in permanent-custody proceedings. As to the specific certified issue, the parties have cited only the Second District Court of Appeals’ decision in Alfrey,
{¶ 13} Our inquiry centers around R.C. 2151.352, which provides, “A child or the child’s parents, custodian, or other person in loco parentis of such child is entitled to representation by legal counsel аt all stages of the proceedings under this chapter or Chapter 2152. of the Revised Code and if, as an indigent person, any such person is unable to employ counsel, to have counsel provided for the person * * *. Counsel must be provided for a child not represented by the child’s parent, guardian, or custodian. If the interests of two or more such parties cоnflict, separate counsel shall be provided for each of them.”
{¶ 14} Furthermore, Juv.R. 4(A) provides, “Every party shall have the right to be represented by counsel and every child, parent, custodian, or other person in loco parentis the right to appointed counsel if indigent. These rights shall arise when a person becomes a party to a juvenile court proceeding. When the complaint alleges that a child is an abused child, the court must appoint an attorney to represent the interests of the child. This rule shall not be construed to provide for a right to appointed counsel in cases in which that right is not otherwise provided for by constitution or statute.”
{¶ 15} This court, in State ex rel. Asberry v. Payne (1998),
{¶ 16} This court, in Asberry,
{¶ 17} The court of appeals in this case, along with most courts of appeals that have considered the issue, determined that a juvenile has a right to counsel in a proceeding to terminate parental rights, based on the juvenile’s status as a party to the proceeding. See In re Janie M. (1999),
{¶ 18} The court of appeals held that a guardian ad litem can, in some situations, serve a dual role as both the guardian ad litem and the juvenile’s аttorney, see Juv.R. 4(C) and R.C. 2151.281(H), and thereby fulfill the juvenile’s right to counsel, provided there has been an express dual appointment by the juvenile court. See In re Duncan/Walker Children (1996),
{¶ 19} In In re Alfrey, on thе other hand, the Second District Court of Appeals found that a child whose fate is being determined at a permanent-custody proceeding is not a party to that proceeding for purposes of R.C. 2151.352 and Juv.R. 4(A) and that, therefore, a child involved in the proceeding has no right to independent counsel. Id.,
{¶ 20} In its decision, the Alfrey court did not cite Juv.R. 2(Y) and did not consider the effect of that provision on its conclusion. However, as the court of appeals in this case recognized, Juv.R. 2(Y) provides a significant indication that children who are the subject of permanent-custody proceedings are within R.C. 2151.352’s reach regarding appointment of counsel. The Fourth Appellate District has recently adopted the approach that the court of appeals took in this case and acknowledged that Juv.R. 2(Y) was an important factor in its decision. See In re Emery, 4th Dist. No. 02CA40,
{¶ 21} In addition, other Juvenile Rules besides Juv.R. 2(Y) and 4(A) lend support to the view that a child who is the subject of a permanent-custody proceeding is a party to that proceeding. See, e.g., Juv.R. 2(0), which defines
{¶ 22} The Alfrey court, in concluding that children are not parties for purposes of R.C. 2151.352, specifically rejected the holdings of the Sixth District in In re Janie M.,
{¶ 23} The Alfrey court drew a distinction between the application of R.C. 2151.352 in a delinquency prоceeding, in which it found that the child is clearly a party and is thus entitled to appointed counsel, and in a termination-of-parental-rights proceeding, in which it found that the child is not a party. Id. at ¶ 6, 21, 30. However, as discussed above, the plain language of the statute belies this distinction and recognizes the child as a party in any juvenile court proceeding, not just in delinquency cases.
{¶ 24} As further support for its position, the Alfrey court found that parents can adequately represent their child’s interests when those interests are aligned with those of the parents and, in that situation, appointment of independent counsel for the child is not necessary. Id. at ¶ 21. Appellant urges us to accept this view and points to the following language from R.C. 2151.352 to support its position: “Counsel must be provided for a child not represented by the child’s parent, guardian, or custodian. If the interests of two or more such parties conflict, separate counsel shall be provided for each of them.” We agree that these two sentences create an ambiguity, in that it is not clear whether the “child” referred to in the first quoted sentence of R.C. 2151.352 is one of the “such parties” referred to in the second quoted sentence, and therefore can be interpreted favorably to appellant’s position.
{¶ 25} In addition, we recognize that there is a dichotomy in finding, as many courts of appeals have, that when the interests of parent and child are aligned a parent has standing to raise the child’s deprivation of counsеl as an issue on appeal and at the same time finding that the parent’s attorney is unable to
{¶ 26} The Alfrey court expressed what it called a “practical cоncern” about the burden that had been imposed on juvenile courts in those appellate districts that had held that a child in a termination-of-parental-rights proceeding is a party to the proceeding and entitled to counsel. Id. at ¶ 29-30. The court questioned the benefit of such a holding, particularly when many children may be involved in a single case, and questioned whether having more attorneys involved would bring anything additional to the proceedings, when the parents’ attorney already represents the interests of the parents, which are congruent with the interests of the child. Id.
{¶ 27} In a somewhat related argument, appellant implies that the procedures set forth in R.C. Chapter 2151, especially R.C. 2151.414, are invoked for the child’s protection and the furtherance of the child’s best interests, and so the child does not need an independent attorney. Appellant cites several R.C. Chapter 2151 sections that indicate that children are generally not permitted to make important decisions and that others, including juvenile court judges, must make those decisions. Appellant also points out that there are statutory requirements in place to guide those judges in reaching their decisions. For example, R.C. 2151.414(D)(2) requires the juvenile court to consider the wishes of the child, whether expressed by the guardian ad litem or directly by the child, so the court cannot ignore the child’s wishes, even if they are not presented by counsel. However, once again, appellant’s arguments and the Alfrey court’s “practical concerns” do not overcome the plain language of the first sentence of R.C. 2151.352, as clarified by the Juvenile Rules.
{¶ 28} Juv.R. 1(B) provides that the Juvenile Rules “shall be liberally interpreted and construed so as to effectuate * * * the just determination of every juvenile court proceeding by ensuring the parties a fair hearing and the recognition and enforcement of their constitutional and other legal rights.” Once we accept the premise that the subject child is a party whose due process rights are entitled to protection, peripheral practical considerations fade in importance. See In re Hoffman,
{¶ 29} For all of the foregoing reasons, we hold that pursuant to R.C. 2151.352, as clarified by Juv.R. 4(A) and Juv.R. 2(Y), a child who is the subject of a juvenile court proceeding to terminate parental rights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances. We affirm
Judgment affirmed.
Notes
. At that time, appellant was known as the Geauga County Department of Human Services, and the complaint was filed under that name.
. Appellee and Larry Williams had separated in March 2000 and did not live together after that time. They obtained a dissolution of their marriage prior to the juvenile court’s hearing.