In re A.N.B.

[Cite as In re A.N.B., 2010-Ohio-2375.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Fourth Floor
Columbus, OH 43215
614.387.9860 or 1.800.824.8263
www.cco.state.oh.us
IN RE: A. N. B.
ELIZABETH L. JASTRZEBSKI
Applicant
Case No. V2009-40781
Commissioners:
Karl C. Kerschner, Presiding
Randi M. Ostry
Lloyd Pierre-Louis
ORDER OF A THREE-COMMISSIONER PANEL
{¶ 1} On January 26, 2009, the applicant, Elizabeth Jastrzebski, filed a
compensation application on behalf of her minor son A.B., as the result of being an
ongoing victim of domestic violence. On May 26, 2009, the Attorney General issued a
finding of fact and decision finding A.B. had met the necessary jurisdictional
requirements to qualify for an award of reparations. The applicant was granted an
award in the amount of $67.50, on A.B.’s behalf. The award represented $13.50 which
was directly paid to Debra Goran, Ph.D. for services rendered to A.B. and $54.00 which
was awarded to the applicant for expenses she incurred with Dr. Goran for the
treatment of A.B. The Attorney General related that 10 percent of the treatment
received from Dr. Goran was unrelated to the criminally injurious conduct. On June 25,
2009, the applicant submitted a request for reconsideration. The applicant asserted
her husband’s insurance carrier would not pay for counseling expenses incurred with
Case No. V2009-40781 - 2 - ORDER
Dr. Goran, since Dr. Goran was not within the insurance carrier’s network.
Accordingly, these expenses should be reimbursed. The applicant also incurred lost
wages to attend custody hearings, guardian ad litem expenses, and related mileage and
parking expenses which should also be reimbursed. On October 23, 2009, the
Attorney General issued a Final Decision. The Attorney General modified its initial
decision and granted the applicant an additional award in the amount of $225.00, of
which $45.00 was paid directly to Dr. Goran for services rendered to A.B. and $180.00
was awarded to the applicant for reimbursement of expenses incurred with Dr. Goran
for the treatment of A.B. The Attorney General denied the applicant’s claim for
reimbursement of guardian ad litem fees pursuant to R.C. 2743.51(F)(4), since they did
not result in the separation of A.B. from his father, the offender, and such expenses do
not fall within the definition of an allowable expense pursuant to R.C. 2743.51(F)(1).
Furthermore, the applicant’s claims for lost wages, parking, and mileage expenses were
denied since they related to a custody matter which did not successfully separate A.B.
from his father.
{¶ 2} On October 29, 2009, the applicant filed a notice of appeal from the
October 23, 2009 Final Decision of the Attorney General. Hence, a hearing was held
before this panel of commissioners on February 3, 2010 at 10:25 A.M. It should be
noted that this hearing concerned both V2009-40781 and V2009-40188, however, this
decision will only address the issues raised in V2009-40781.
{¶ 3} The applicant and her attorney, Kimberley Wells, appeared at the hearing
while the state of Ohio was represented by Assistant Attorneys General Lyndsay Nash
and Amy O’Grady. As a preliminary matter, it was disclosed to the parties that
Commissioner Ostry was associated with a law firm for whom attorney Wells had, in the
Case No. V2009-40781 - 3 - ORDER
past, performed contract work. Neither party expressed any objections to
Commissioner Ostry hearing this matter.
{¶ 4} With respect to V2009-40781, the case at bar, the issue to be addressed
concerns whether the guardian ad litem fees should be reimbursed.
{¶ 5} Elizabeth Jastrzebski was called to testify. She described the history of
domestic violence she experienced with her husband. She revealed that she filed for
divorce on May 16, 2007. Initially the father was allowed supervised visitation with his
children. However, this situation changed after approximately three months. On
October 15, 2007, Darlene Wilcox was appointed guardian ad litem of the children.
The applicant related that Ms. Wilcox facilitated the return of A.B. on an occasion when
her husband kept A.B. beyond the visitation time period. The applicant also related
that she met with Ms. Wilcox on other occasions in conjunction with the custody issue
concerning A.B. The applicant testified that the guardian ad litem was also A.B.’s
attorney and looked out for his best interest. She testified that she is responsible for
approximately $2,500.00 in guardian ad litem fees and approximately $500-$1000 for
summer camp fees that she incurred for A.B. while she was working.
{¶ 6} Assistant Attorney General Amy O’Grady cross-examined the applicant.
The applicant did not know who recommended a guardian ad litem be appointed in the
divorce case. The applicant asserted she witnessed that the guardian ad litem was
looking out for the best interests of A.B. and that he was placed in appropriate
surroundings. After custody was awarded to the applicant, A.B.’s father was granted
visitation without supervision but A.B. could not spend nights with him. After the
divorce became final in December 2008 that restriction on visitation was dropped.
Case No. V2009-40781 - 4 - ORDER
{¶ 7} Whereupon, the testimony of the applicant was concluded. The applicant
moved to admit Exhibits 1, 2, and 3. The Attorney General moved to admit a letter
dated February 28, 2008 from Darlene Wilcox and a letter dated October 1, 2007 from
Freda Saleem, of Family Conciliation Services.
{¶ 8} The only issue involved with this case is whether the guardian ad litem
fees should be reimbursable under the Program. The applicant relies on the cases of
In re Parks, V2004-60865tc (1-28-05) and In re West, V2003-40208tc (8-1-03) to
support the proposition that guardian ad litem fees are compensable. These cases
were decided after the modification and addition of R.C. 2743.51(F)(4) to the Crime
Victims Statute. Furthermore, the applicant contends that case law adopted by this
court prior to the amendment of the statute should not be ignored. The applicant
contends these fees were incurred for the care and rehabilitation of the minor child.
The guardian ad litem recommendations were adopted by the court in making the
applicant the residential and custodial parent of A.B., because it was in A.B.’s best
interests. The applicant asserted the guardian ad litem’s legal services benefitted the
child’s remedial treatment and care, and fit the definition of R.C. 2743.51(F)(1).
{¶ 9} The Attorney General argued that the law provides only two
circumstances when attorney fees may be compensated. First, when an attorney
obtains an order to physically separate a victim from an offender; and, second, when an
attorney assists a victim with a compensation claim. Accordingly, guardian ad litem fee
should not be reimbursable under the program. The Attorney General asserts all cases
cited by the applicant fall under the law prior to the addition of R.C. 2743.51(F)(4). The
Attorney General noted that even though In re Parks was decided after the amendment,
Case No. V2009-40781 - 5 - ORDER
the criminally injurious conduct occurred in 1997 and implied that the former law was
applied in that case. Whereupon, the hearing was concluded.
{¶ 10} R.C. 2743.51(F)(1) states:
“(F)(1) ‘Allowable expense’ means reasonable charges incurred for reasonably
needed products, services, and accommodations, including those for medical
care, rehabilitation, rehabilitative occupational training, and other remedial
treatment and care and including replacement costs for eyeglasses and other
corrective lenses. It does not include that portion of a charge for a room in a
hospital, clinic, convalescent home, nursing home, or any other institution
engaged in providing nursing care and related services in excess of a
reasonable and customary charge for semiprivate accommodations, unless
accommodations other than semiprivate accommodations are medically
required.”
{¶ 11} R.C. 2743.51(F)(4) in pertinent part states:
“(4) ‘Allowable expense’ includes attorney’s fees not exceeding one thousand
three hundred twenty dollars, at a rate not exceeding sixty dollars per hour,
incurred to successfully obtain a restraining order, custody order, or other order
to physically separate a victim from an offender * * *”
{¶ 12} From review of the case file and upon full and careful review of the
testimony presented and arguments at the hearing, we find that the guardian ad litem
expenses are not compensable. First, we find that the applicant directed us to only
consider April 12, 2007 as the date of the criminally injurious conduct and not consider
any alleged incidents of domestic violence which may have occurred before that date.
Consequently, current R.C. 2743.51(F)(4) applies to this case. That provision limits the
Case No. V2009-40781 - 6 - ORDER
compensation of attorney fees as an allowable expense to those circumstances where a
“restraining order, custody order, or other order” successfully physically separates a
victim from an offender. In the case at bar, the guardian ad litem’s role was to facilitate
a situation where A.B. could spend time with both parents. While the guardian ad litem
recommended that the applicant be A.B.’s custodial parent, we can find no evidence
that the guardian ad litem advocated A.B.’s physical separation from his father.
{¶ 13} Furthermore, based upon the specific language of R.C. 2743.51(F)(1) that
“reasonable charges” are incurred for “reasonably needed” services including those for
“other remedial treatment and care”, guardian ad litem fees do not fall within its purview.
We find that a guardian ad litem advocates in court for the best interests of the child,
however, the guardian ad litem is not trained to provide care or treatment to the child.
Nothing presented by the applicant convinces this panel that the guardian ad litem
provided any more than legal expertise and services to the child in question.
{¶ 14} The applicant wishes this panel to rely on the holding in In re West.
However, the panel in West determined the guardian ad litem fees were compensable
as “pre-disclosure expenses related to the criminally injurious conduct.” In West, it was
unknown that the minor victims in that case were sexual abuse victims until the
guardian ad litem was appointed in the underlying divorce case. It was only through
disclosures made to the guardian ad litem that the sexual abuse was discovered. Such
was not the situation in the case at bar. No evidence has been presented that the
guardian ad litem in this case had acted in that manner.
{¶ 15} Therefore, pursuant to R.C. 2743.51(F)(1) and R.C. 2743.51(F)(4),
guardian ad litem fees are not reimbursable. Accordingly, the October 23, 2009
decision of the Attorney General is affirmed.
Case No. V2009-40781 - 7 - ORDER
IT IS THEREFORE ORDERED THAT
{¶ 16} 1) Applicant’s Exhibits 1, 2, and 3 are admitted into evidence;
{¶ 17} 2) Attorney General’s letter from Darlene Wilcox dated
February 28, 2008 and letter from Freda Saleem dated October 1, 2007 are admitted
into evidence;
{¶ 18} 3) The October 23, 2009 decision of the Attorney General is
AFFIRMED;
{¶ 19} 4) This claim is DENIED and judgment is rendered for the state of
Ohio;
{¶ 20} 5) This order is entered without prejudice to the applicant’s right to file
a supplemental compensation application, within five years of this order, pursuant to
R.C. 2743.68;
{¶ 21} 6) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
KARL C. KERSCHNER
Presiding Commissioner
_______________________________________
RANDI M. OSTRY
Commissioner
Case No. V2009-40781 - 8 - ORDER
_______________________________________
LLOYD PIERRE-LOUIS
Commissioner
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Cuyahoga County Prosecuting Attorney and to:
Filed 5-14-2010
Jr. Vol. 2275, Pgs. 122-128
To S.C. Reporter 5-27-2010