In Re Slider

Kline, Judge. ¶ 1 Joseph Slider appeals the decision of the Washington County Court of Common Pleas, Juvenile Division, finding him delinquent based on kidnapping in violation of R.C. 2152.02(F)(1) and 2905.01(A)(1). Slider contends that the trial court erred when it failed to appoint a guardian ad litem. Because we find that the trial court abused its discretion by failing to appoint a guardian ad litem when a conflict of interest existed between Slider and his legal guardians, we agree. Accordingly, we reverse the judgment of the trial court, vacate the conviction and sentence, and remand this cause for further proceedings consistent with this opinion. I ¶ 2 On June 8, 2004, the state filed a complaint alleging that Slider, aged 14, was a delinquent child by having committed abduction and gross sexual imposition in violation of R.C. 2152.02(F)(1), 2905.01(A)(1), and 2907.05(A)(1). However, instead of abduction, the language used in the complaint by the state alleged kidnapping in violation of R.C. 2905.01(A)(4). The state accused Slider of forcibly *161 restraining the alleged victim in her bedroom for the purpose of engaging in sexual activity against her will. At the adjudicatory hearing, the trial court amended the abduction charge to kidnapping but mistakenly continued to refer to R.C. 2905.01(A)(1) instead of 2905.01(A)(4), the proper statutory section. ¶ 3 At the time the offense occurred and throughout the delinquency process, Phyllis and Denny Gossett were Slider’s legal guardians. 1 Phyllis and Denny are also the parents of the victim. At the detention/shelter-eare hearing, the trial court questioned both guardians. When asked about Slider’s natural mother, Sabrina Gossett, Phyllis advised the court that “[s]he doesn’t have anything to do with [Slider].” Phyllis also informed the court that she and her husband have legal care and custody of Slider because his mother fails to care for him and noted that Sabrina has blocked Phyllis and Denny’s phone number from her home telephone. Phyllis told the court that she thought Slider should have an attorney but stated that neither she nor Denny would hire one for Slider and refused to take Slider home with them. Denny told the court that “[t]here’s no help” for Slider. ¶ 4 The trial court found Slider delinquent pursuant to R.C. 2152.02(F)(1) for an offense that if committed by an adult is a violation of R.C. 2905.01(A)(1). 2 At the dispositional hearing, the trial court heard a statement from the victim and a letter composed by Phyllis and Denny. In their statement, Phyllis and Denny requested that the trial court institutionalize Slider. The trial court sentenced Slider to commitment with the Department of Youth Services for a minimum of two years up to a maximum age of 21 years. ¶ 5 After the trial court sentenced Slider, Phyllis informed the court that she and her husband wished to have their legal custody of Slider terminated. The trial court ordered that temporary custody be placed with Sandra and Ralph Blake, Slider’s maternal grandmother and stepgrandfather, after Sabrina advised the court that she agreed and stated that she was unable to act as a temporary custodian because she has three other children. ¶ 6 Slider appeals and raises the following assignments of error: “I. The trial court violated Joseph Slider’s right to due process by failing to exclude all witnesses in violation of Ohio Rule of Evidence 615, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 16 of the Ohio Constitution. *162 “II. The trial court violated Joseph Slider’s right to due process by admitting hearsay evidence in violation of Ohio Rules of Evidence 801 and 802, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 16 of the Ohio Constitution. “III. The trial court violated Joseph Slider’s right to due process by admitting character evidence in violation of Ohio Rules of Evidence 401, 402, 403, and 404, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 16 of the Ohio Constitution. “IV. Joseph Slider was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution. “V. The trial court violated Joseph Slider’s right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution when it adjudicated him delinquent of kidnapping when that finding was against the manifest weight of the evidence. “VI. The trial court committed reversible error when it failed to appoint a guardian ad litem for Joseph Slider in violation of Ohio Revised Code Section 2151.281(A) and Juvenile Rule 4(B).” II ¶ 7 Because we find Slider’s sixth assignment of error dispositive, we address it first. Slider argues that the trial court erred when it failed to appoint a guardian ad litem pursuant to R.C. 2151.281(A) and Juv.R. 4(B). Slider asserts that a conflict of interest existed between him and his guardians because his guardians are the victim’s parents, thus triggering the statutory and rule requirements for appointment of a guardian ad litem. The state contends that the trial court did not abuse its discretion because Slider’s natural mother was present at all stages of the delinquency process. ¶ 8 Both R.C. 2151.281(A) and Juv.R. 4(B) mandate that a juvenile court appoint a guardian ad litem in certain circumstances. R.C. 2151.281(A) provides: “The court shall appoint a guardian ad litem to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when either of the following applies: “(1) The child has no parent, guardian, or legal custodian. “(2) The court finds that there is a conflict of interest between the child and the child’s parent, guardian, or legal custodian.” Juv.R. 4(B) provides: *163 “The court shall appoint a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile court proceeding when: “(1) The child has no parents, guardians, or legal custodian; [or] “(2) The interests of the child and the interests of the parent may conflict # * * » ¶ 9 Because these provisions are mandatory, the failure of a court to appoint a guardian ad litem when these provisions require one constitutes reversible error. In re Howell (1991), 77 Ohio App.3d 80, 92, 601 N.E.2d 92. The plain language of Juv.R. 4(B) mandates that the possibility that interests “may conflict” suffice for a required appointment of a guardian ad litem. Nevertheless, “the juvenile court is in the best position to weigh the relevant facts in determining whether a potential conflict of interest exists between the parent and child.” In re Sappington (1997), 123 Ohio App.3d 448, 453-454, 704 N.E.2d 339, citing Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 47 O.O. 481, 106 N.E.2d 772. Therefore, an abuse-of-discretion standard applies to the trial court’s decision whether to appoint a guardian ad litem. Sappington at 454, 704 N.E.2d 339. Thus, the relevant question here is whether the record below “reveals a strong enough possibility of conflict of interest between [the legal guardians] and child to show that the juvenile court abused its discretion” by not appointing a guardian ad litem. Id. ¶ 10 A juvenile court should be more sensitive to potential conflicts of interest under Juv.R. 4(B)(2) when there is no other person to protect the interests and rights of the juvenile. Sappington, 123 Ohio App.3d at 455, 704 N.E.2d 339. In Sappington, the court found it relevant to consider whether counsel represented the juvenile. Id. However, we have held that a juvenile’s representation by counsel does not render the failure to appoint a guardian ad litem harmless. In re Wilson, Washington App. No. 04CA26, 2004-Ohio-7276, 2004 WL 3090235, at ¶ 19. In so holding, we reasoned that “the task of a guardian ad litem is to investigate the child’s situation and ask the court to do what the guardian ad litem believes is in the minor’s best interest. In re Howard (1997), 119 Ohio App.3d 201, 206, 695 N.E.2d 1; also see, In re Baby Girl Baxter (1985), 17 Ohio St.3d 229, 232, 17 OBR 469, 479 N.E.2d 257 (dependent child case). An attorney can theoretically take on both responsibilities, but the duties of a lawyer and the duties of a guardian ad litem may also conflict. In re Howard, supra, [119 Ohio App.3d] at 206, 695 N.E.2d 1; In re Dunham (Nov. 7, 1997), Hamilton App. Nos. C-960399 and C-960400, 1997 WL 691440.” ¶ 11 Here, Slider did not request a guardian ad litem or object to the trial court’s failure to appoint a guardian ad litem. Ordinarily, rights are deemed waived if they are not raised before the trial court and will be enforced upon *164 appeal only if the error constitutes plain error. In re Johnson, Franklin App. No. 03AP-1264, 2004-Ohio-3886, 2004 WL 1631756, citing Stores Realty Co. v. Cleveland Bd. of Bldg. Stds. & Bldg. Appeals (1975), 41 Ohio St.2d 41, 43, 70 O.O.2d 123, 322 N.E.2d 629. However, this court has previously reversed a finding of delinquency when the trial court failed to appoint a guardian ad litem or at least inquire further whether a guardian ad litem was necessary, even though an objection was not made. In re Spradlin (2000), 140 Ohio App.3d 402, 747 N.E.2d 877. In Spradlin, the juvenile did not have counsel, and the conflict of interest between the juvenile and his legal guardian was apparent. ¶ 12 Here, we find that the trial court abused its discretion when it failed to appoint a guardian ad litem or inquire further into whether a guardian ad litem was necessary. See Spradlin, 140 Ohio App.3d at 407, 747 N.E.2d 877. At the time of the adjudicatory and dispositional hearings, Slider’s legal guardians were Phyllis and Denny. More than a “strong possibility” of a conflict of interest existed between Slider and his legal guardians. Phyllis and Denny were unwilling to hire an attorney for Slider and refused to take him home with them because they feared for their daughter’s safety. At the adjudicatory hearing, Phyllis testified against Slider, and, in a letter read at the dispositional hearing, Phyllis and Denny requested that the trial court institutionalize Slider. All of these actions were against the penal interests of Slider. 3 ¶ 13 Even without the actions of Phyllis and Denny at the adjudicatory and dispositional hearings, the trial court was on sufficient notice from its dialogue with them at the detention/shelter-care hearing to warrant either appointing a guardian ad litem or inquiring further into whether one was necessary. By that time, Slider’s guardians had expressed a clear intention to distance themselves from him, and counsel did not represent him during the hearing. Therefore, the failure to appoint a guardian ad litem, or at least make further inquiry as to its necessity, was an abuse of discretion, even absent a request for a guardian ad litem or an objection to the failure to appoint one. ¶ 14 It is true that Sabrina, Slider’s mother, was present at the adjudicatory and dispositional hearings. However, Sabrina did not have legal custody of her son, and the trial court was informed by Phyllis at the detention/shelter-care hearing that Sabrina had had no involvement with him. Therefore, it was an abuse of discretion not to appoint a guardian ad litem even though Slider’s natural mother was present at the hearings. This finding is buttressed by the fact that Slider’s temporary legal custody was ultimately not placed with Sabrina. *165 {¶ 15} The trial court appointed counsel, who represented Slider at the adjudicatory and dispositional hearings. Nonetheless, appointment of trial counsel does not render the failure to appoint a guardian ad litem harmless error. Wilson, supra, 2004-Ohio-7276, at ¶ 19. The trial court did not appoint Slider’s attorney in the dual role of trial counsel and guardian ad litem, and, therefore, counsel had no duty to act as Slider’s guardian ad litem. See In re Duncan/Walker Children (1996), 109 Ohio App.3d 841, 673 N.E.2d 217 (an attorney cannot act as both trial counsel and guardian ad litem unless the trial court orders a dual appointment and finds that no conflict exists between those two roles). Accordingly, we sustain Slider’s sixth assignment of error. Ill ¶ 16 Because we find that the trial court erred when it failed to appoint a guardian ad litem, or at least inquire further into whether one was necessary, when a conflict of interest existed between Slider and his legal guardians, we sustain Slider’s sixth assignment of error. Because our resolution of Slider’s sixth assignment of error renders his other assignments of error moot, we decline to address them. See App.R. 12(A)(1)(c). Accordingly, we sustain Slider’s sixth assignment of error and reverse the trial court’s judgment, vacate the conviction and sentence, and remand this cause for further proceedings consistent -with this opinion. Judgment reversed and cause remanded. Peter B. Abele, P.J., concurs. McFarland, J., dissents. Footnotes [2] Again, the correct statute is R.C. 2905.01(A)(4). The trial court also found that the charges of kidnapping and gross sexual imposition are allied offenses of similar import and, therefore, found Slider delinquent only by reason of having violated R.C. 2905.01(A)(1). [3] We are not passing judgment on Phyllis and Denny. Their position in this case is understandable because the victim is their daughter.