Guardian Ad Litem


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Juvenile Rule 2(N) -- Guardian ad litem defined.
Juvenile Rule 4(B) -- Guardian ad litem; when appointed.
Juvenile Rule 4(C) -- Guardian ad litem as counsel.
R.C. 2151.281 -- Guardian ad litem.
In re C.T., 119 Ohio St. 3d 494, 2008-Ohio-4570 – Syllabus: "A guardian ad litem has authority under R.C. 2151.281(I) and 2151.415(F) to file and prosecute a motion to terminate parental rights and award permanent custody in a child welfare case. Reverses In re C.T., 174 Ohio App. 3d 594, 2007-Ohio-6970. The referenced provisions provide independent statutory authority for the GAL to file a permanent custody motion. Note: 2151.414 is limited to 2151.413 motions which must be filed by an agency. GAL motions probably would be adjudicated pursuant to 2151.353.
In re A.L., Franklin App. No. 07AP-638 and 647, 2008-Ohio-800 -- (1) In termination of parental rights proceedings the guardian ad litem for the child worked for a public defender office which it was subsequently ascertained had provided representation to both parents on criminal charges. Since no party objected at trial, review of claimed conflict of interest is on the basis of plain error. Since the conflict appears to have been unknown to the trial guardian, had no influence on her duties to protect the child‘s interests, and did not affect the integrity of proceedings, reversal is not warranted. (2) The GAL filed a report well in advance of the actual trial, which was continued fifteen times over the years. The report, coupled with a verbal update satisfied the guardian‘s obligations. (3) In abuse cases Juv. R. 4(A) requires the appointment of counsel in addition to a GAL. Here the failure to do so at the time of the initial proceedings appears not to have been prejudicial, and the time to appeal has passed. Nor is the subsequent failure to appoint counsel prejudicial, there having been no allegations of subsequent abuse, and as the child‘s wishes, to the extent they could be discerned at age four, had been conveyed to the court.
In re S.B., 183 Ohio App. 3d 300, 2009-Ohio-3619, ¶9-24 – Attorney was appointed as both counsel and guardian ad litem. Child gave conflicting responses when asked how she felt about being adopted. Though the prescribed procedure is appointment of a new GAL and continuation as counsel, the court appointed new counsel and allowed the guardian to continue in that role, as he was also guardian for siblings. Imprisoned father assigned this as error. Held that he lacked standing as his interest and the child‘s were not aligned as to continuation of the family unit. Court notes standing had been found in another case where such interests were aligned. Furthermore, error was waived by both the initial GAL-counsel and new counsel appointed for the child.
In re A.G.B., 173 Ohio App. 3d 263, 2007-Ohio-4753 – Parents were divorced. Instead of seeking a modification of custody within the domestic relations case, which would require proof of changed circumstances, the father filed an abuse-neglect-dependency complaint. Children Services was not involved. Reversed, as the court was required to appoint a guardian ad litem, notwithstanding the mother‘s failure to object in the trial court. Dissent believes Chapter 2151 does not apply to private custody disputes.
In re Hoffman, 97 Ohio St. 3d 92, 2002-Ohio-5368 -- Syllabus: "In a permanent custody proceeding in which the guardian ad litem's report will be a factor in the trial court's decision, parties to the proceeding have the right to cross-examine the guardian ad litem concerning the contents of the report and the basis for a custody recommendation."
In re Salsgiver, Geauga App. No. 2002-G-2477, 2003-Ohio-1206 -- Permanent custody case had been remanded for further consideration of matters bearing on the best interest of the child. Trial court ordered a supplemental report from the guardian ad litem, which the father assigned as error. While the general rule is that a trial court is to start anew at the point the error occurred, here the failure was that of the guardian, not that of the child welfare agency. No abuse of discretion found in ordering an additional report. Reversed anyway because the court failed to schedule an additional hearing to permit the father to present additional evidence in response to the report and to permit cross-examination of the guardian. Court also erred by failing to make complete findings on statutory best interest factors. Companion appeal by mother: In re Salsgiver, Geauga App. No. 2002-G-2478, 2003-Ohio-1203.
In re Swisher, Franklin App. No. 02AP-1408, 2003-Ohio-5446 -- A guardian's report should be filed in a timely manner before or at the time of a PCC hearing. The report should contain (1) a recommendation regarding permanent custody, (2) an evaluation of the children's competency, (3) a statement of their wishes to the extent they have them, and (4) an evaluation of their best interests. Nonetheless, the rules of evidence apply at the hearing. This means the parties will have to find an exception to the hearsay rule or bring in competent witnesses, including the children, to put in evidence matters covered in the report. For the same individual to serve as attorney and guardian ad litem there must be a dual appointment.
In re Sherman, 162 Ohio App. 3d 73, 2005-Ohio-3444 -- Guardian's written report was erroneously admitted where it contained extensive inadmissible hearsay.
In re Tyas, Clinton App. No. CA2002-02-010, 2002-Ohio-6679 -- Court finds neither plain error or structural error where no request was made to call the guardian as a witness or to cross-examine the guardian concerning the report.
In re Etter (1998), 134 Ohio App. 3d 484, 490 -- "The purpose of a guardian ad litem is to secure for the juvenile or incompetent person a proper defense or an adequate protection of his or her rights. In re Height (1975), 47 Ohio App. 2d 203...It is the guardian ad litem's duty to protect the best interests of the incompetent. A guardian ad litem is considered an officer of the court, see Lovejoy v. Cuyahoga Cnty. Dept. of Human Serv. (1991), 76 Ohio App. 3d 514...and must be distinguished from a general guardian who has the general care and control of the person." Guardian's acquiescence in disposing of dependency allegation by admission did not relieve the court of its obligation to personally address respondent in accordance with Juvenile Rule 29(A).
In re Stacey S. (1999), 136 Ohio App. 3d 503 -- Children in permanent commitment proceeding had a right to have counsel appointed to represent their interest. This was not discharged by appointment of a lay guardian and counsel to represent that guardian who later became guardian as well. Guardian favored termination of parental rights, but children expressed continuing love for their parents.
In re Clark (2001), 141 Ohio App. 3d 58 -- Guardian ad litem favored permanent custody to agency, but child wanted to stay with his mother. Reversed for failure to appoint an attorney for the child. Right to counsel attaches under R.C. 2151.352 because a GAL does not exercise parental rights, and thus the child is not represented by a parent, guardian or custodian.
In re Bowers, Franklin App. Nos. 02AP-347 and 379, 2002-Ohio-5084, ¶32-43 -- Failure to object to the untimely filing of the GAL's report waives error. Neither case law nor the Revised Code require the guardian to testify at trial or specify what must be included in the guardian's report.
In re R.C., Cuyahoga App. No. 82453, 2003-Ohio-7062 -- Failure to object to the lack of a guardian ad litem's report waives all but plain error. Here the guardian testified and the court cannot conclude the outcome would have been different had a report been filed.
In re Johns, Stark App. No. 2003CA00146, 2003-Ohio-3621 -- No error in guardian's report being filed eight days after the hearing. Report offered no new facts or thoughts on relevant issues, already testified to by a social workers. Mother's counsel had passed up opportunity to cross-examine the guardian.
In re Sadiku (2000), 139 Ohio App. 3d 263 -- Court improperly prevented mother from presenting testimony rebutting the report of the guardian ad litem because it was not sworn.
In re Spradlin (2000), 140 Ohio App. 3d 402 -- Grandfather appeared with juvenile at delinquency dispositional hearing where he mentioned having filed unruly charges, then declined to say more because "I think the boy's in enough trouble without me causing more." Because this indicated a strong possibility of a conflict of interest between the child and his legal guardian, it was an abuse of discretion not to appoint a guardian ad litem. Also see In re K.J.F., Clark App. No. 2003 CA 41, 2004-Ohio-263 where the rape victim and delinquent had same parents and mother's letters contributed to probation revocation.
In re K.B., 170 Ohio App. 3d 121, 2007-Ohio-396 -- It was an abuse of discretion not to appoint a guardian ad litem when charges were based on child's unauthorized use of a telephone in the mother's room. Concurring opinion indicates lack of a transcript is the primary concern.
In re Wilson, Washington App. No. 04CA26, 2004-Ohio-7276 -- It was error not to appoint a guardian in an incest-rape case where the parents testified for the state and recommended commitment to DYS. Representation by counsel did not render the error harmless. Though the opinion focuses on disposition, remedy is outright reversal. Also see In re Slider, 160 Ohio App. 3d 159, 2005-Ohio-1457.
In re Freda R.L. Johnson, Columbiana App. No. 02 CO 51, 2003-Ohio-3278 -- It was an abuse of discretion to refuse to appoint a guardian ad litem because the request was deemed untimely without hearing evidence as to the existence of a conflict of interest.
Hogan v. Hogan, Butler App. Nos. CA2002-09-216 and 225, 2003-Ohio-4747 -- In a domestic relations case the trial court erroneously quashed the father's subpoena for the file of the guardian ad litem. Since the guardian was not also appointed as attorney for the children, her notes are not trial preparation materials protected as work product under Civil Rule 26(B)(3). Remanded for the court to conduct an in camera inspection of the subpoenaed materials, then determine whether release would not be in the children's best interest.
In re Baby Girl Baxter (1985), 17 Ohio St. 3d 229, 232 -- "The duty of a lawyer to his client and the duty of a guardian ad litem to his ward are not always identical and, in fact, may conflict. The role of a guardian ad litem is to investigate the ward's situation and then to ask the court to do what the guardian feels is in the client's best interest. The role of the attorney is to zealously represent his client within the bounds of the law...If the attorney feels there is a conflict between his role as attorney and his role as guardian, he should petition the court for an order allowing him to withdraw as guardian. The court should not hesitate to grant such request." Denial of proper representation by counsel led to reversal. Also see In re Smith (1991), 77 Ohio App. 3d 1, 12-14; Bawidamann v. Bawidamann (1989), 63 Ohio App. 3d 691, 700-703.
In re Duncan/Walker Children (1996), 109 Ohio App. 3d 841 -- (1) In order for an attorney to act as guardian ad litem for the ward and attorney for the ward, there must be a dual appointment and a finding that no conflict exists. See concurring and dissenting opinion. (2) Court rejects purported findings of fact and submitted by guardian and counsel for parents because they were primarily based on the guardian's unsworn report.
Davis v. Trumbull County Children Services Board (1985), 24 Ohio App. 3d 180 -- (1) A guardian ad litem is required in neglect and abuse cases, but not in dependency proceedings. (2) An agency report containing social history information is hearsay and may not be admitted to prove allegations in a dependency complaint. (3) An agency may not seize a person's child and then be the sole judge of how much evidence as to its own conduct it will divulge.
In re Miller (1997), 119 Ohio App. 3d 52 -- Juvenile entered an admission to raping his 9-year old sister. Their mother was the only person accompanying him in the courtroom. A guardian ad litem should have been appointed. Court also finds waiver of the right to counsel was insufficient where judge jointly addressed the group of juveniles making an initial appearance, then utilized a form waiver without individually addressing those waiving counsel and entering admissions.
In re Sappington (1997), 123 Ohio App. 3d 448 -- There does not have to be a actual conflict of interest between parent and child to require appointment of a guardian ad litem. It is enough that it appears interests may conflict. Appointment of a guardian was required where family had filed charges against child before, and father both discouraged representation by and attorney and favored imprisonment.
In re Howard (1997), 119 Ohio App. 3d 201 -- At disposition, juvenile's mother said he should be committed to the Department of Youth Services. While this raised a colorable claim of conflict, requiring inquiry into the need to appoint a guardian ad litem, not every statement by a parent against a child's penal interest requires appointment of a GAL.
In re Johnson (1996), 106 Ohio App. 3d 38 -- It is the duty of the guardian ad litem to insure that the juvenile's statutory rights are protected. If the juvenile's wishes conflict with the guardian ad litem's representation, an attorney must be appointed to represent the juvenile's wishes. Grandmother was appointed as guardian ad litem, but did not adequately fulfill this function. When allowed to cross-examine a police officer, she asked one question, then accused him of lying.
Thatcher v. Fields (1997), 118 Ohio App. 3d 63 -- A minor defendant in a tort action is responsible for paying the fee of a court-appointed guardian ad litem. A court is without authority to shift this expense to the prevailing plaintiff in the action.
Penn v. McMonagle (1990), 60 Ohio App. 3d 149 -- A court appointed guardian ad litem is entitled to absolute immunity from actions arising out of the performance of his or her duties. Also see Kurzawa v. Mueller (6th Cir. 1984), 732 F.2d 1456.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.