In Re Slider , 160 Ohio App. 3d 159 ( 2005 )

{¶ 17} I respectfully dissent. In my view, the trial court did not abuse its discretion by failing to appoint a guardian ad litem. The record does not convince me that there was a sufficient "strong possibility of conflicting interests" between the child Joseph Slider and his legal guardians, Phyllis and Denny Gossett, or Sabrina Gossett, his biological mother. The single fact that the legal guardians were also the parents of the victim does not in my view necessitate appointment of a guardian ad litem.

{¶ 18} At the detention hearing, the court asked the legal guardians whether the biological mother, Sabrina Gossett, had received notice of the hearing, and they did not know. In that hearing, a probation officer told the court that the legal guardians had said that they felt their home was not a safe environment for him or the victim. Also at the hearing, the alleged delinquent child initially said that he did not want counsel, and it was Ms. Gossett who stated: "No, he should have an attorney." Last, and most telling, she stated, "I just pray that the court will be able to help him," and Mr. Gossett proclaimed, "I still care * * * and I feel sorry for him."

{¶ 19} These statements do not expressly or implicitly indicate a strong possibility of conflicting interests. In fact, in my opinion, they indicate a genuine concern for the child's well-being. The court acted reasonably after hearing this information by ordering appointed counsel for the child and by placing the alleged delinquent child in secure detention, ensuring his safety and that of the victim.

{¶ 20} The trial court found the child to be a delinquent child after a contested adjudication. The child was represented by appointed counsel, and his biological mother was present for all stages. The matter was passed for disposition.

{¶ 21} At the dispositional hearing, Ms. Gossett read a letter composed by her and her husband, as Mr. Gossett was not present. The relevant portion is as follows: "Joseph's grandfather and myself did and still do love Joseph very much. We only want what is best for him." The majority opinion indicates that Ms. Gossett requested institutionalization for the child; however, the full context of the statement should be analyzed to grasp her true meaning. Ms. Gossett's statement was "He needs to be institutionalized for as long as it takes him to get the help he needs." In this context, it shows a concern for him to get help, which was consistent with her previous statements at the detention hearing.

{¶ 22} During the same hearing, counsel for the child argued for alternative placement with other relatives and recommended community control with anger-management and sexual-relations counseling. She urged the court that if placement with a relative was not acceptable and in lieu of the Ohio Department of Youth Services, it should place the child at Hocking Valley Residential Center.⁴ The probation department recommended placement with the Ohio Department of Youth Services. The court sentenced the child to the custody of the Ohio Department of Youth Services and then discussed who would be the temporary custodian while the child was incarcerated.

{¶ 23} The court was advised that Ralph Blake, a stepgrandparent, was willing to accept this role. The majority opinion seems to indicate that the child's mother agreed to a temporary custody placement with Blake while her child was in prison because she had other children. However, I am not persuaded by her words that this is what she meant. The transcript reads as follows:

Sabrina Gossett: But I still have rights. You know what I am saying? To see what's going on with him up there and everything else.

The Court: You're still his mother, yeah.

Sabrina Gossett: `Cause if I can't — I have three girls —

The Court: Un-huh.

Sabrina Gossett: — and if I can't go, if something goes wrong, you know, then they can.

The Court: Right, right. Yeah, my concern is, with the history of this case, he was with another aunt and uncle, and then he went with you —

Sabrina Gossett: That's when I was in the program.

The Court: — okay, and then you were having trouble controlling him, so he went with them, and you've got three other kids?

Sabrina Gossett: I have three little girls.

The Court: Okay, all right.

{¶ 24} This exchange does not indicate a conflict between the child and his mother but rather a sincere concern for someone to look after the child in the event she could not. It also shows that she even recognized that naming her as temporary custodian might not be in this child's best interests. Further, this dialogue was after the court found the child guilty and after it pronounced sentence, conceivably making any conflict moot.

{¶ 25} The court was presented with many possible options for placement and ultimately committed the child to the Ohio Department of Youth Services with a recommendation of admission into the sex-offender program.

{¶ 26} The role of the guardian ad litem is most helpful with cases involving termination of parental rights or at disposition in delinquency matters. For example, the guardian ad litem might recommend alternative placement in the best interests of the child. The guardian might urge placement at less-restrictive facilities tailored to the needs of the child or might suggest other care. In this case, it appears that appointed counsel did all of the work generally associated with that of a guardian ad litem. Further, at no time does it appear that a conflict or strong possibility of a conflict existed between the biological mother and child.

{¶ 27} Admittedly, there was frustration by the legal guardians in not being able to get the necessary help for Joseph Slider and a natural desire to protect their own offspring from additional harm. However, at the critical stages of the proceedings Phyllis and Denny Gossett were still concerned that Joseph "get the help he needs," and the child's biological parent and appointed counsel were present.

{¶ 28} This court has dealt with varying factual settings when addressing this issue. See In re Spradlin (2000),140 Ohio App.3d 402, 747 N.E.2d 877. This court, In re Wilson, Washington App. No. 04CA26, 2004-Ohio-7276, 2004 WL 3090235, stated, "[W]e decline to adopt any hard and fast rule that requires the appointment of a guardian ad litem in every case." In these cases, the factual setting is most sensitive and dictates scrutiny on a case-by-case analysis.

{¶ 29} Appellate courts should not reverse a trial court absent an abuse of discretion. See, generally, In re Sappington (1997), 123 Ohio App.3d 448, 704 N.E.2d 339, where the court found that "the juvenile court is in a better position to weigh the relevant facts in determining whether a potential conflict of interest exists between the parent and child." Courts have stated that inherent in the trial court's analysis is whether competent counsel was appointed for the child. See In re D.M.,158 Ohio App.3d 780, 2004-Ohio-5858, 822 N.E.2d 433, citing In reJohnson (1995), 106 Ohio App.3d 38, 665 N.E.2d 247; In reNation (1989), 61 Ohio App.3d 763, 573 N.E.2d 1155. See In reDunham (Nov. 7, 1997), Hamilton App. Nos. C-960399 and C-960400,1997 WL 691440.

{¶ 30} The majority opinion cites In re Howell (1991),77 Ohio App.3d 80, 601 N.E.2d 92, for the proposition that failure to appoint a guardian ad litem is reversible error; however, that case and its holding arose in an adoption case and referred to permanent custody cases, not delinquency proceedings.

{¶ 31} The other cases cited by the majority are distinguishable because here the child had competent trial counsel and had his biological mother present throughout the contested portions of the proceedings. Also, the child's biological mother had no close relation to the victim, nor did she reside in the same household.

{¶ 32} The Ohio Supreme Court has stated that an abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219,5 OBR 481, 450 N.E.2d 1140. An abuse of discretion demonstrates "perversity of will, passion, prejudice, partiality, or moral delinquency." Pons v. Ohio State Med. Bd. (1993),66 Ohio St.3d 619, 621, 614 N.E.2d 748. When applying the abuse-of-discretion standard, this court may not substitute its judgment for that of the trial court. Id.

{¶ 33} It is also relevant that the same court in State v.Hanning (2000), 89 Ohio St.3d 86, 728 N.E.2d 1059, stated that the "juvenile justice system is grounded in the legal doctrine of parens patriae, meaning that the state has the power to act as a provider of protection to those unable to care for themselves."⁵ This doctrine still allows the trial court to act in and look out for the best interests of any delinquent child and the child's immediate or extended families.

{¶ 34} I realize that this may be a close call for the majority herein. However, the following facts support my conclusion that a guardian ad litem was not required: (1) the child had competent trial counsel who acted zealously during the adjudication, (2) the testimony by the biological mother and legal guardians at all hearings indicated a concern for the delinquent child, (3) the biological mother was present throughout the adjudication and disposition hearings and did not testify against her son, (4) the appointed counsel practically and theoretically took on both roles of attorney and guardian ad litem.

{¶ 35} Thus, after reviewing the record, I would hold that the court below did not act arbitrarily, capriciously, or unconscionably in the case. The record fails to demonstrate that the court acted with perversity of will, passion, prejudice, or moral delinquency. This court, by its past decision, and rightfully so, has indicated that there is not a hard and fast rule requiring appointment in every case. In my view, there was no conflict between the child and his legal guardians sufficient to require appointment of a guardian ad litem. There was also no conflict between the child and his biological mother. Further, there were no objections made at trial preserving the issue of conflict, arguably because trial counsel as well did not see any conflict or the utility of a guardian ad litem.

{¶ 36} In my view, if there was error below, that error was harmless, as the child had competent counsel and had his biological mother present at all contested stages. The court also had multiple suggestions for disposition, all of which came from different persons. Assuming arguendo that a guardian ad litem had been appointed below, it is unlikely that the ultimate disposition would have been any different or not in the best interests of this child. In this case, we should defer to the judge below, whose eyes were more focused on the best interests of the child and who daily uses the important doctrine of parens patriae.

{¶ 37} Therefore, I would defer to the court below, which sat in a better position to determine the necessity for a guardian ad litem, and affirm the conviction.

⁴ Hocking Valley is a less-restrictive placement under the purview of the Ohio Department of Youth Services.

⁵ The doctrine of parens patriae has been defined as the juvenile court's acting toward those children brought before the court as a wise and kindly parent would in dealing with his own children. See, generally, Paul C. Giannelli, Ohio Juvenile Law, citing Young, A Synopsis of Ohio Juvenile Court Law (1962), 31 Cin.L.Rev.131, 136, and Harpst, Practice in Cuyahoga County Juvenile Court (1961), 10 Clev.-Mar.L.Rev. 507.