In re K.S. , 2022 Ohio 2827 ( 2022 )

[Cite as In re K.S., 2022-Ohio-2827.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
IN RE: :
K.S., et al. : CASE NO. CA2021-09-020
: OPINION
8/15/2022
:
:
:
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. AND20190581 thru AND20190585
Jess C. Weade, Fayette County Prosecuting Attorney, and Rachel S. Martin, Assistant
Prosecuting Attorney, for appellee.
Kathryn Hapner, for appellant.
BYRNE, J.
{¶ 1} Father, the biological father of Amber, Alicia, and Kory ("the children")1,
appeals from the decision of the Fayette County Court of Common Pleas, Juvenile Division,
which granted legal custody of the children to a family member. For the reasons described
below, we reverse the juvenile court's decision.
1. For privacy and readability, we refer to the children using fictitious names.
Fayette CA2021-09-020
I. Facts and Procedural Background
{¶ 2} In October 2019, Fayette County Children Services ("FCCS" or "the agency")
filed complaints alleging that Amber (approximately four and one-half years old) and Alicia
(five and one-half years old) were dependent and neglected children. The agency alleged
that Kory (nearly seven years old), was an abused, dependent, and neglected child. FCCS
alleged that an older, maternal half-sibling had accused Father of rape. The complaints
further alleged that the siblings accused Father of physically abusing Kory.
{¶ 3} The complaints also alleged the children's biological Mother had moved in
with her family members, "Aunt" and "Uncle." However, Mother had then left the children
with Aunt and Uncle and checked herself into a psychiatric hospital.
{¶ 4} FCCS requested an order for temporary custody of the children. The juvenile
court granted temporary custody. The agency placed the children with Aunt and Uncle,
where they remained for the rest of the case.
{¶ 5} Two months later, in December 2019, Mother and Father stipulated that the
children were dependent pursuant to R.C. 2151.04(A). The parties further stipulated that
the children should remain in the agency's temporary custody. The court adjudicated the
children dependent and continued temporary custody with FCCS.
{¶ 6} Both Mother and Father entered case plans for reunifying with the children.
The court denied Father visitation with the children while law enforcement investigated the
rape allegation. Ultimately, law enforcement charged Father with the rape of the older
daughter.
{¶ 7} However, in April 2021 – 18 months after the filing of the complaints – Father
moved for visitation. In this motion, Father noted that a jury had acquitted him of all charges
against him. The agency did not object and the court granted visitation.
{¶ 8} In June 2021, Aunt moved for legal custody of the children. Later that month,
-2-
Fayette CA2021-09-020
Father moved for legal custody of the children.
{¶ 9} The juvenile court conducted the hearing on legal custody the following
month. Mother, Father, Aunt, and an FCCS investigator testified.2 In August 2021, the
court issued its decision on legal custody.
{¶ 10} Reviewing the relevant facts of the case, the court found that it was in the
children's best interest to place them in Aunt's legal custody. The court ordered that Mother
and Father would continue to enjoy visitation time with the children as directed by the court.
{¶ 11} Father appealed, raising three assignments of error.
II. Law and Analysis
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO APPOINT
A GUARDIAN AD LITEM TO REPRESENT THE CHILDREN'S INTERESTS AS
REQUIRED BY ORC 2151.281 AND JUVENILE RULE 4.
{¶ 14} Father contends that the juvenile court erred by failing to appoint the children
a guardian ad litem ("GAL") to protect their best interests. Father argues that the Revised
Code and the Rules of Juvenile Procedure mandate the appointment of a GAL in every
case where the complaining party alleges abuse or neglect. The state concedes error and
suggests that we reverse and remand to appoint a GAL.
{¶ 15} R.C. 2151.281(B)(1) provides in relevant part that, "the court shall appoint a
guardian ad litem, subject to rules adopted by the supreme court, to protect the interest of
a child in any proceeding concerning an alleged abused or neglected child * * *." Similarly,
the version of Juv.R. 4(B) in effect at the time of the children's removal provided,
Guardian ad Litem; When Appointed. The court shall appoint
2. Mother did not move for custody. She testified at the hearing that she was still working on her case plan
for reunification and asked the court to give her more time to work on the plan. Mother did not participate in
this appeal.
-3-
Fayette CA2021-09-020
a guardian ad litem to protect the interests of a child or
incompetent adult in a juvenile court proceeding when:
***
(5) Any proceeding involves allegations of abuse or neglect,
voluntary surrender of permanent custody, or termination of
parental rights as soon as possible after the commencement of
such proceeding.3
{¶ 16} The plain language R.C. 2151.281(B)(1) and Juv.R. 4(B) require a court to
appoint a GAL for the benefit of a child in any proceeding involving or concerning allegations
of abuse or neglect. In this case, the complaints filed alleged that all three children were
neglected. The complaint concerning Kory alleged that he was an abused child. Based on
the allegations presented and the plain language of the statute and rule described above,
the court was required to appoint the children a GAL.
{¶ 17} It is undisputed that the juvenile court in this case did not appoint a GAL. It is
also undisputed that no party specifically requested that the court appoint the children a
GAL and no party objected to the procedures at the trial court level. Nonetheless, other
courts that have encountered this circumstance have found reversible error.
{¶ 18} In In re A.G.B., 4th Dist. Scioto No. 06CA3084, 2007-Ohio-4753, a legal
custody case, the court of appeals held that the court's duty to appoint a GAL was
mandatory and was not waived because of a mother's failure to request a GAL. In that
case, the father filed a complaint alleging that the parties' daughter was abused, neglected,
and dependent and sought an order granting him legal custody. Id. at ¶ 3. The juvenile
court subsequently adjudicated the daughter neglected and dependent. Id. at ¶ 5-6. Later,
a magistrate issued a decision granting the father's request for custody and further granting
the mother visitation. Id. at ¶ 7. The mother objected to the magistrate's decision, arguing
3. The current version of Juv.R. 4(B), effective July 1, 2020, adds dependency as a ground mandating the
appointment of a GAL. This version was not in effect at the time of the children's removal.
-4-
Fayette CA2021-09-020
that the custody decision was not in the daughter's best interest. Id. at ¶ 8. The juvenile
court overruled the mother's objections. Id. at ¶ 9.
{¶ 19} On appeal to the Fourth District, the mother argued for the first time that the
juvenile court erred by failing to appoint the children a GAL. Id. The father argued that the
mother failed to request the appointment of a GAL and thus had waived the right to assign
error in this regard. Id. at ¶ 14. The appellate court noted that it had previously found that
R.C. 2151.281(B)(1) and Juv.R. 4(B) conferred a child with a mandatory right to the
appointment of a GAL in permanent custody proceedings and that the court had previously
sua sponte raised the issue of failing to appoint a GAL in another permanent custody case.
Id. at ¶ 13-14. The court observed that because parents have a fundamental liberty interest
in the care, custody, and management of their child, the same reasoning applicable in
permanent custody proceedings should apply in legal custody proceedings. Id. at ¶ 15,
citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388 (1982).
{¶ 20} Moreover, the Fourth District noted that the right to the appointment of GAL
belongs to the child. Id. When considering that other parties in a custody proceeding might
have a conflicting interest with the child's best interest, the failure of a party to object or
request a GAL could not constitute a waiver of the court's duty to appoint a GAL. Id. Other
courts have held similarly. In re P.H., 5th Dist. Perry Nos. 18-CA-00008 and 18-CA-00010,
2019-Ohio-137, ¶ 50; In re Myer, 5th Dist. Delaware No. 80-CA-10, 1981 Ohio App. LEXIS
4942, *10-11 (June 16, 1981).
{¶ 21} We agree with this reasoning. Because this was a "proceeding concerning *
* * alleged abused or neglected" children, the juvenile court was required to appoint the
-5-
Fayette CA2021-09-020
children a GAL. R.C. 2151.281(B)(1); Juv.R. 4(B).4 That the parties failed to request the
appointment of a GAL or object to the juvenile court's procedures did not waive the court's
mandatory duty to appoint a GAL. In re A.G.B. at ¶ 15; In re P.H. at ¶ 50; In re Myer at *10-
11. Based on the foregoing analysis, we sustain Father's first assignment of error, reverse
the legal custody decision, and remand for appointment of a GAL and for further
proceedings.
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT
APPLYING THE CORRECT LEGAL STANDARD IN MAKING ITS AWARD OF LEGAL
CUSTODY.
{¶ 24} Assignment of Error No. 3:
{¶ 25} THE TRIAL COURT'S AWARD OF LEGAL CUSTODY TO A NON-PARENT
RELATIVE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS
CONSTITUTES REVERSIBLE ERROR.
{¶ 26} In his second assignment of error, Father argues that the court erred by not
making a parental unsuitability finding. In his third assignment of error, Father challenges
the weight of the evidence supporting the legal custody decision. Our ruling on the first
assignment of error renders these assignments of error moot and they need not be
considered. App.R. 12(A)(1)(c).
III. Conclusion
{¶ 27} The juvenile court erred by not appointing the children a GAL to represent
4. We also note that pursuant to R.C. 2151.281(B)(2)(b), the court "shall" appoint a GAL for an alleged
dependent child if "[t]here is a conflict of interest between the child and the child's parents * * *." (Emphasis
added.) It would seem to us that when the state alleges that a child is dependent due to the actions or
inactions of a parent, a conflict of interest would presumably exist between the child and parent and thus
mandate the appointment of a GAL under R.C. 2151.281(B)(2)(b). However, Father did not raise an argument
under R.C. 2151.281(B)(2)(b) so we need not decide this issue.
-6-
Fayette CA2021-09-020
their interests in the legal custody proceedings. We reverse the legal custody decision,
remand for the appointment of a GAL and for any necessary proceedings afterwards.
{¶ 28} Judgment reversed and remanded.
S. POWELL, P.J., and HENDRICKSON, J., concur.
-7-