In re M.R. ( 2011 )

[Cite as In re M.R., 2011-Ohio-6654.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97109
IN RE: M.R., ET AL.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-09901822, AD-09901825, and AD-09901827
BEFORE: Sweeney, J., Blackmon, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: December 22, 2011
ATTORNEY FOR APPELLANT
Patrick S. Lavelle, Esq.
Van Sweringen Arcade
123 West Prospect Avenue, Suite 250
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
Amy Carson, Esq.
Assistant County Prosecutor
C.C.D.C.F.S.
8111 Quincy Avenue
Cleveland, Ohio 44104
Charles J. Consiglio, Esq.
850 Euclid Avenue
801 Citizens Building
Cleveland, Ohio 44114
Theodore A. Amata, Esq.
P.O. Box 93332
Cleveland, Ohio 44101
JAMES J. SWEENEY, J.:
{¶ 1} Appellant A.S. (“mother”) appeals the court’s granting permanent custody
of her three minor children to the Cuyahoga County Department of Children and Family
Services (“CCDCFS”). After reviewing the facts of the case and pertinent law, we
affirm.
{¶ 2} On February 6, 2009, CCDCFS filed a motion for emergency temporary
custody of mother’s three children: M.R., who was born on May 13, 2002; K.R., who
was born on July 15, 2003; and W.R., who was born on February 11, 2007. The basis of
the county’s involvement in this case is not in dispute — mother suffers from chronic
drug addiction, has no stable home, has mental health issues, and lacks adequate
parenting skills. Additionally, she has a history of domestic violence with the children’s
father, who is not a party to this appeal.
{¶ 3} The court granted CCDCFS’s motion for temporary custody, and all three
children have been living in the same foster home since February 12, 2009. Mother was
put on a case plan with the goal of reunification with her children. However, mother did
not make satisfactory progress on her case plan. For example, she continued to abuse
drugs, failed to secure housing, and served a nine month prison term for felony
convictions.
{¶ 4} On March 1, 2010, CCDCFS filed a motion for permanent custody of the
children. Throughout these proceedings, the children were represented by a guardian ad
litem (“the GAL”), who also served as their attorney. On September 16, 2010, the GAL
filed a report recommending that permanent custody of the children be granted to
CCDCFS. On September 28, 2010, the court conducted an in camera interview of the
children. The court held a three-day custody hearing in April of 2011, at which the GAL
testified. On June 29, 2011, the court granted permanent custody of the children to
CCDCFS.
{¶ 5} Mother appeals the termination of her parental rights; however, she does not
dispute that immediate reunification was inappropriate. Rather, at issue in this appeal is
whether an attorney other than the GAL should have been appointed to represent the
minors because of a conflict of interest.
{¶ 6} Mother raises one assignment of error for our review.
{¶ 7} “I. The lower court erred when it failed to assign independent counsel for
the minor children.”
{¶ 8} The Ohio Supreme Court has determined that, pursuant to R.C. 2151.352,
“a juvenile has a right to counsel in a proceeding to terminate parental rights * * *.
[C]ourts should make a determination, on a case-by-case basis, whether the child actually
needs independent counsel, taking into account the maturity of the child and the
possibility of the child’s guardian ad litem being appointed to represent the child.” In re
Williams, 101 Ohio St. 3d 395, 2004-Ohio-1500, 805 N.E.2d 1110, ¶17.
{¶ 9} Additionally, R.C. 2151.281(H) provides that “[i]f the guardian ad litem for
[the] child is an attorney admitted to the practice of law in this state, the guardian ad litem
also may serve as counsel to the ward. * * * [I]f a person is serving as guardian ad litem
and counsel for a child and either that person or the court finds that a conflict may exist
between the person’s roles as guardian ad litem and as counsel, the court shall relieve the
person of duties as guardian ad litem and appoint someone else as guardian ad litem for
the child.”
{¶ 10} This conflict of interest was explained in In re Baby Girl Baxter (1985), 17
Ohio St. 3d 229, 232, 479 N.E.2d 257: “The role of guardian ad litem is to investigate the
[child’s] situation and then to ask the court to do what that guardian feels is in the
[child’s] best interest. The role of the attorney is to zealously represent his client within
the bounds of the law.”
{¶ 11} In the instant case, mother argues the conflict arose when the GAL
recommended that the motion to terminate parental rights be granted, despite evidence in
the record that the children expressly stated they wished to remain with mother.
According to mother, the evidence of the children’s wishes is found in the GAL’s
testimony.
{¶ 12} Upon review of the GAL’s testimony, we find no conflict of interest in that
the children did not expressly state to the GAL that they wished to remain with their
mother. The GAL unequivocally recommended that custody of the children be granted
to CCDCFS. However, the GAL also testified that there was a bond between mother
and children, but the children were aware that mother was not “ready to take them home.”
For example, the children knew that mother was in “programs” and that she had
“problems with the law.”
{¶ 13} In two interviews, the children represented to the GAL that mother would
be their “first alternative,” if and when she was ready to take them back. According to
the GAL, the children’s facial expressions would become “very downcast [with] no eye
contact” when they stated that mother has been telling them that she will be ready “for a
long time.”
{¶ 14} Additionally, the GAL testified that he discussed with the children the
probability that mother may not be ready by the time the judge had to make a decision.
The GAL asked the children how they would feel if they were placed for adoption with
their foster parents. M.R. answered collectively, “Well, that’s okay, too.”
{¶ 15} The Fifth District Court of Appeals of Ohio reviewed a case similar to the
one at hand and found no conflict of interest with the guardian ad litem, and thus, no
reason to appoint independent counsel. In In re K.K. & D.C., Licking App. No.
09-CA-93, 2009-Ohio-5887, one of the children “expressed a desire to return to his
mother’s home,” but the guardian ad litem felt that the child “did not want to hurt his
mother” and wanted to “play with his cousins.” The child then told the guardian ad
litem that “if he could not go home he wished to remain with the foster family, and
consider them as his own family.” Id. at ¶11. On appeal, the court held that “the child
did not consistently express a desire to return to appellant.” Id. at ¶15.
{¶ 16} Accordingly, we find no error in the court’s allowing the GAL to act as
counsel to the children because there was no conflict of interest between the two roles.
Mother’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, P.J., and
KENNETH A. ROCCO, J., CONCUR