In re D.D. ( 2019 )

[Cite as In re D.D., 2019-Ohio-4492.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: D.D. : APPEAL NO. C-190387
TRIAL NO. F07-2138Z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 1, 2019
Jeffrey J. Cutcher, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Gretta M. Herberth,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Kimberly A. Helfrich,
Assistant Public Defender, for Appellee Guardian ad Litem.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Mother has appealed from the Hamilton County Juvenile Court’s
judgment granting permanent custody of her son D.D. to the Hamilton County
Department of Job and Family Services (“HCJFS”).
{¶2} Mother does not challenge the sufficiency or the weight of the evidence
supporting the trial court’s grant of permanent custody, but rather contends that a
new permanent-custody trial is necessary due to various errors that she claims
occurred in the proceedings below. Finding mother’s arguments to be without merit,
we affirm the trial court’s judgment.
Independent Counsel
{¶3} In her first assignment of error, mother argues that the trial court
erred by allowing D.D.’s In re Williams attorney to withdraw during the initial stages
of the proceedings. And she argues in her second assignment of error that the trial
court erred by terminating the representation of D.D.’s In re Williams attorney after
that attorney had been reappointed by the magistrate. As these assignments of error
are related, we address them together.
{¶4} At a hearing on September 11, 2018, mother’s counsel requested that
an In re Williams attorney be appointed for D.D. Mother’s counsel represented to
the magistrate that D.D. wanted to return home, while his guardian ad litem (“GAL”)
believed that a grant of permanent custody to HCJFS was in D.D.’s best interest. The
GAL did not contest mother’s request, stating that while D.D. did not want to return
home to mother, he had expressed interest in living with a relative. The magistrate
issued an order appointing an In re Williams attorney for D.D. At a hearing on
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October 4, 2018, the In re Williams attorney made an oral motion to withdraw from
representation of D.D. He informed the magistrate that he had engaged in a detailed
conversation with D.D., and that D.D. was very much in favor of permanent custody
and wanted the relationship with his mother to be severed. Neither mother, HCJFS,
nor the GAL objected, and the magistrate granted the request to withdraw.
{¶5} During a dispositional hearing on November 2, 2018, Melinda
Webster, who was D.D.’s social worker at Children’s Hospital Medical Center, was
asked when testifying if D.D. had expressed any feelings about returning to mother’s
care. Webster testified that D.D. had expressed concern for his little brother, and
had stated that if he returned home, he would take his little brother and run away
upon the first disagreement with mother. The magistrate then asked Webster if D.D.
had stated that he wanted to go home, and after clarifying that the magistrate was
not referring to any specific period of time, Webster answered affirmatively. The
magistrate stopped the hearing in progress to appoint an In re Williams attorney for
D.D. Both HCJFS and the GAL requested that the magistrate reappoint the previous
In re Williams attorney, with whom D.D. already had a relationship. They also filed
a joint objection to the magistrate’s decision. The magistrate reappointed the same
In re Williams attorney for D.D. The attorney then filed a motion for a mistrial,
arguing that since D.D. had not been represented at the prior hearing, a new trial was
necessary.
{¶6} At a hearing on the objection to the appointment of counsel before the
trial court, the In re Williams attorney stated that D.D. had completely changed his
mind about his desire to return to mother’s care, and that D.D. had remained
consistent in that desire since changing his mind. HCJFS and the GAL argued that
D.D. had only expressed a desire to go home so that he could protect his little
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OHIO FIRST DISTRICT COURT OF APPEALS
brother, and that D.D., who struggled intellectually and had mental-health issues,
had not consistently expressed a desire to return to mother’s care. The trial
court granted the objection to the magistrate’s decision and rejected the appointment
of the In re Williams attorney.
{¶7} We first consider mother’s argument that the trial court erred in
allowing the In re Williams attorney to withdraw upon an oral motion. Mother
contends that the attorney should not have been allowed to withdraw because he did
not file a written motion in accordance with Loc.Juv.R. 12(D). Loc.Juv.R. 12(D)
provides that an attorney seeking to withdraw as counsel shall file a written motion
to withdraw. But it further provides that “[f]or good cause shown, the court may
permit an oral motion to withdraw as counsel of record if no party is prejudiced
thereby.” Loc.Juv.R. 12(D); In re A.J.O., 1st Dist. Hamilton No. C-180680, 2019-
Ohio-975, ¶ 28. The In re Williams attorney made the oral motion to withdraw after
meeting with D.D. and informing the magistrate that D.D. was in favor of permanent
custody and wanted to sever his relationship with mother. As no objections were
raised to the motion to withdraw, and the record at that time contained no indication
that D.D. wanted to return to mother’s care, we find that no party was prejudiced by
independent counsel’s withdrawal from representation based on an oral motion, and
that the trial court did not err in so allowing.
{¶8} We next consider mother’s argument that the trial court erred by
granting the objection filed by HCJFS and the GAL and terminating the magistrate’s
appointment of the In re Williams attorney.
{¶9} Mother first contends that because HCJFS and the GAL had requested
that the same In re Williams attorney be reappointed, the invited-error doctrine
barred them from objecting to that decision. We disagree. Neither HCJFS nor the
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OHIO FIRST DISTRICT COURT OF APPEALS
GAL requested that an In re Williams attorney be reappointed. But once the
magistrate made the decision that such an attorney was needed, they requested that
the same attorney be reappointed because D.D. had already established a
relationship with that attorney. They then filed their joint objection within the
permitted time frame. The invited-error doctrine has no application to this situation.
See State v. Cephas, 1st Dist. Hamilton No. C-180105, 2019-Ohio-52, ¶ 24 (“Under
the invited-error doctrine, a party cannot take advantage of an error that the party
invited or induced the trial court to make.”).
{¶10} In In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d
1110, syllabus, the Ohio Supreme Court held that “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.” This
court has explained that the “certain circumstances” referred to in In re Williams are
instances in which the child’s custodial wishes conflict with those expressed by the
GAL when the GAL is also serving as the child’s attorney. In re Walling, 1st Dist.
Hamilton No. C-050646, 2006-Ohio-810, ¶ 24. When those circumstances arise, the
trial court should conduct an in camera interview with the child, while giving due
consideration to child’s maturity level, to determine whether independent counsel is
needed. Id.{¶11} D.D. has extreme behavioral issues, suffers from mental-health issues,
and is lower-functioning intellectually. The record indicates that the trial court was
unable to conduct an in camera interview with D.D. because he was unstable and
conducting the in camera would have been unsafe for all involved.
{¶12} As to D.D.’s custodial wishes, the GAL at one point represented that
D.D. had expressed interest in being placed with a relative, while consistently
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OHIO FIRST DISTRICT COURT OF APPEALS
maintaining throughout the case that D.D. did not want to return home. And the In
re Williams attorney had withdrawn in the first instance because D.D.’s wishes
aligned with the GAL’s. The social worker’s testimony did not establish that D.D.
desired to return to mother’s care or that his wishes were in conflict with the GAL’s.
She testified that D.D. had expressed a desire to protect his younger brother if he
returned home. And she stated that, at some point in time, D.D. had expressed a
desire to go home, but she gave no indication as to when he had so indicated. D.D.
did express to his In re Williams attorney, upon that attorney’s second appointment,
that he wanted to return home to mother. But the record clearly indicates that he
had not consistently expressed that desire throughout the case.
{¶13} On these facts, the trial court did not err in granting the objection filed
by HCJFS and the GAL and in determining that independent counsel was not
necessary.
{¶14} Mother’s first and second assignments of error are overruled.
Alleged Cumulative Error
{¶15} In her third assignment of error, mother argues that cumulative errors
prevented her and D.D. from receiving a fair trial.
{¶16} Mother first argues that HCJFS’s complaint for permanent custody
was defective. The complaint filed by HCJFS alleged that Nathaniel Lee was the
father of D.D, although both Nathaniel Lee and “John Doe” were served with notice
of the complaint by publication.1 After D.D. was adjudicated neglected and
dependent, it was revealed that DNA test results established that Lee was not D.D.’s
father. Mother did not identify any other potential fathers for D.D. The magistrate
1 “John Doe” was not named in the complaint, but was served by publication.
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OHIO FIRST DISTRICT COURT OF APPEALS
gave HCJFS an opportunity to amend the complaint, but it declined to do so. Mother
now argues that it was error not to have named John Doe in the complaint, and that
D.D. was deprived of the opportunity to have his father come forward. We hold that
because she has not demonstrated any prejudice to herself, mother does not have
standing to raise this argument.
{¶17} In In re A.M., 9th Dist. Summit No. 26141, 2012-Ohio-1024, the court
considered an argument raised by the mother in a permanent-custody action that
service had not been properly obtained on the alleged fathers of her child or on John
Doe. It held that mother could only challenge an alleged service error on a non-
appealing party where she demonstrated that she herself was prejudiced by the error.
Id. at ¶ 13. Where mother offered no evidence that custody was likely to have been
awarded to either of the alleged fathers or to John Doe, she lacked standing to
challenge the service on those parties. Id. at ¶ 18-19. The court further held that
mother’s argument that the failure to properly serve the alleged fathers affected her
residual parenting rights did not establish standing because the argument was
entirely speculative and failed to establish actual prejudice to mother. Id. at ¶ 21.
{¶18} Although this case involves the failure to name the correct father in the
complaint, rather than obtain service on the alleged father, we find the Ninth
District’s reasoning persuasive. On the circumstances of this case, where John Doe
was served with notice of the complaint despite not being named, and where mother
has not identified any other potential fathers of D.D., we hold that mother has failed
to establish any prejudice to herself and has no standing to challenge the complaint’s
failure to name John Doe.
{¶19} And even if mother had established standing, she waived her argument
by failing to timely raise it below. Juv.R. 22(D) provides that defenses or objections
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OHIO FIRST DISTRICT COURT OF APPEALS
based on defects in the complaint or in the institution of the proceedings must be
raised prior to the adjudicatory hearing. Juv.R. 22(D)(1) and (2); In re Dukes, 81
Ohio App.3d 145, 150, 610 N.E.2d 513 (9th Dist.1991); In re K.A.D., 8th Dist.
Cuyahoga No. 102228, 2015-Ohio-2408, ¶ 24. Mother did not raise any objection to
the failure to name John Doe in the complaint until well after D.D. was adjudicated
dependent and neglected, and consequently has waived the argument.
{¶20} Mother next argues that it was error to deny her request for a
continuance when she could not appear at the hearing scheduled for October 16,
2018. We are not persuaded. The parties had appeared at an adjudicatory hearing
before the magistrate on October 12, 2018. At the close of the hearing, D.D. was
adjudicated neglected and dependent, and all parties acknowledged that the case
would be continued until October 16. On the 16th, mother’s counsel appeared and
requested a continuance, which the magistrate denied. Where mother had agreed to
the date of the hearing just four days earlier, where the remaining parties were ready
to proceed, and where counsel was present to represent mother’s interests, we find
no abuse of discretion in the magistrate’s denial of mother’s requested continuance.
See State v. Mauldin, 1st Dist. Hamilton No. C-030158, 2003-Ohio-6505, ¶ 6.
{¶21} Under her cumulative-error argument, mother last alleges error in the
trial court’s removal of D.D.’s In re Williams attorney. But we rejected this argument
in our resolution of the first and second assignments of error. Having found no
error, cumulative or otherwise, in the arguments raised by mother, we overrule her
third assignment of error.
{¶22} The judgment of the trial court is accordingly affirmed.
Judgment affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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