In Re A.G.B. , 173 Ohio App. 3d 263 ( 2007 )

{¶ 20} I regretfully concur in the reversal of this judgment for two reasons. First, we have taken a long time to decide the case, and as one can see from the various positions we have taken, still cannot agree on the issues. Second, it seems that waiver should apply to the mother because she failed to object to the lack of a guardian ad litem ("GAL") even though she was represented by counsel. One might wonder what strategic advantage the lack of a GAL could have appeared to represent to a mother who was alleged to have engaged in the neglect and dependency of her child. This is especially intriguing given the total lack of a children services agency or an individual party in the development and presentation of this case. Nonetheless, I feel compelled to agree that the child is entitled to the services of a GAL even where the mother has waived any complaint that the mother may belatedly now raise. Were we to decide that the mother couldn't raise the child's right, by whom and how would that interest gain protection? Thus, I concur in judgment.

ABELE, J., dissents.

{¶ 21} I respectfully dissent, but for reasons other than the merits of the issues set forth in appellant's assignments of error.

{¶ 22} This case involves a custody-modification dispute between two parents. Previously, appellant had been awarded custody of the parties' child through a domestic relations court proceeding. In this case, appellee filed a postdecree motion in the juvenile court and asserted, pursuant to R.C. Chapter 2151, that their child is abused, neglected, and dependent. Notably, this filing and the presentation of the case did not involve the local public children services agency. It is my belief that R.C. Chapter 2151 does not apply to "private" custody disputes (i.e., custody actions brought by private parties rather than children services agencies). Rather, in private custody-modification disputes between parents, as we have in the case sub judice, a trial court must focus on the child's best interest and whether a sufficient change in circumstances has occurred since the previous custody determination. See R.C. Chapter 3109. In this context, a parents' fitness or suitability may certainly be raised as an issue, along with other evidence that may be used to establish a change in circumstances. However, R.C. Chapter 2151 is not directly involved. Reynolds v. Goll (1996),75 Ohio St. 3d 121, 661 N.E.2d 1008, citing In re Perales (1977), 52 Ohio St. 2d 89, 6 O.O.2d 293, 369 N.E.2d 1047; Inre Wilson (Apr. 30, 1999), Miami App. No. 98-CA-19,1999 WL 252799; R.C. 2151.23 and 3109.04. I also recognize that a substantial overlap exists between the two standards. Nevertheless, I am uncomfortable with the notion that private litigants may invoke R.C. Chapter 2151 and its detailed and complicated requirements that are generally not involved in a private custody-modification dispute between parents.