In Re Clark

I concur with the majority's judgment and analysis of the first assignment of error. As for the third assignment of error, I agree that the permanent custody order regarding Dwayne should be reversed based upon the direct conflict between the guardian ad litem's recommendation and the expressed wishes of Dwayne. However, I must respectfully dissent from the majority's reversal of the permanent custody order regarding Dawhon and Destiny. The majority apparently opines that the juvenile court is required to appoint a separate counsel for the children even where there is no direct conflict between the guardian ad litem's recommendation and the desire of the children.

The majority relies on a line of cases from the Fifth and Sixth Appellate District.¹ However, these cases involve conflicts of interest. See In re Smith (1991), 77 Ohio App. 3d 1, 601 N.E.2d 45 (the guardian ad litem also acted as attorney for the children, and the guardian's recommendation conflicted with the expressed desires of the children); In re Janie M. (1999), 131 Ohio App. 3d 637, 723 N.E.2d 191 (At the time of the initial hearing, the magistrate was aware that Tyler's wishes were clearly different from those of the guardian. Therefore, we conclude that the court erred in not appointing counsel to represent Tyler.).

Absent a direct conflict between the recommendation of the guardian ad litem and the expressed wishes of the children, Ohio courts traditionally have not required a separate appointment of a counsel for children in custody proceedings. As noted in the dissent to In re Duncan/Walker Children (1996), 109 Ohio App. 3d 841, 673 N.E.2d 217:

Juv.R. 4(C)(1) states that where the guardian ad litem is an attorney admitted to practice in this state, the guardian may also serve as counsel to the ward, provided that no conflict between the roles exists. It appears to be the common practice of the trial court to allow a guardian ad litem who is also an attorney to serve as counsel for the ward at various stages of the proceeding without a separate entry of appointment. I find that the trial court's acquiescence in (if not encouragement of) the guardian ad litem's participation as attorney for the ward constitutes a de facto appointment. Should a conflict between the two roles become evident to either the guardian ad litem or the trial court at any stage, Juv.R. 4(C)(2) specifically provides for the appointment of a new guardian ad litem. Though I would concede that a formalized entry reflecting dual appointment might be the better approach, I do not find the de facto appointment procedure utilized by the trial court in the case sub judice to constitute error as a matter of law, let alone reversible error as found by the majority.

Based upon the foregoing, I would affirm the order granting permanent custody of Dawhon and Destiny to CCDCFS.

¹ The majority also cited to State ex rel Asberry v. Payne (1998),82 Ohio St. 3d 44, 693 N.E.2d 794. However, Asberry is inapposite to the facts of this case. In Asberry, the Supreme Court of Ohio held that a child's maternal grandmother had a clear legal right to appointment of counsel in the juvenile court's review of her custody petition.