In re Baby Girl Baxter

Douglas, J. This case raises three issues. The first is whether Evelyn Baxter was denied the proper representation of counsel during the proceedings in Carroll County Juvenile Court. R.C. 2151.352 and Juv. R. 4(A) provide for the appointment of counsel in cases where parental rights are subject to termination. Furthermore, this court has held that the state must appoint counsel for indigent parents at parental termination proceedings. State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6 [15 O.O.3d 3]. Juv. R. 4(B)(3) and R.C. 2151.281 mandate that the court appoint a guardian ad litem to protect the interests of an incompetent adult in a juvenile proceeding where the parent appears to be mentally incompetent. Juv. R. 4(C) expressly allows appointed counsel to also serve as guardian ad litem. Appellant now argues that Heflin, who served as both her attorney and guardian ad litem in juvenile court, had conflicting duties and that he, therefore, failed to provide her with proper representation. 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 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 ward’s best interest. The role of the attorney is to zealously represent his client within the bounds of the law. DR 7-101; DR 7-102. We have carefully reviewed the entire record in this case and based on that review find that Heflin was put in the position of being required to ask the court, as guardian ad litem, to do what he felt was in his ward’s best interests and simultaneously being required to champion his client’s cause in his capacity as her attorney. Since Heflin felt his ward-client’s wishes were not beneficial to her, he was in an impossible situation. That is why, for example, he elicited testimony from the welfare department social worker that his ward-client had previously had a child out of wedlock and why he elicited testimony from the psychologist that his ward-client would have great difficulty in caring for her child. Indeed, he elicited testmony from Evelyn that her boyfriend (who is allegedly Baby Girl Baxter’s natural father) stays with Evelyn whenever he is in Carrollton. All of this evidence was detrimental to Evelyn’s legal case but was beneficial in helping the court to decide what was best for Evelyn. Heflin highlighted the problem during the closing argument of the evidentiary hearing when he said, “as Guardian Ad Litem I’m in a rather difficult position * * *.” Considering the foregoing, we hold that when an attorney is appointed to represent a person and is also appointed guardian ad litem for that person, his first and highest duty is to zealously represent his client within the bounds of the law and to champion his client’s cause. 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. [233] Thus, we find that Evelyn Baxter was denied the proper representation of counsel during proceedings in the juvenile court. The second issue in this case is whether the juvenile court must hold separate adjudicatory and dispositional hearings in proceedings where parental rights are subject to termination. Herein, the juvenile court combined the adjudicatory and dispositional hearings. Both the Juvenile Rules and the Revised Code prescribe that such proceedings be bifurcated into separate adjudicatory and dispositional stages. Juv. R. 29 deals with the adjudicatory hearing. It states that if the allegations in the complaint are proved, the court “shall * * * enter an adjudication and proceed forthwith to disposition.” Juv. R. 29(F)(2)(a). R.C. 2151.35 also deals with hearing procedures in juvenile court. It states that if the court finds a child is a dependent child, “the court shall proceed immediately, or at a postponed hearing, to hear the evidence as to the proper disposition to be made * * * Juv. R. 34 deals with the dispositional hearing. It states that “[t]he dispositional hearing may be held immediately following the adjudicatory hearing or at a later time fixed by the court.” The law commands that the proceedings be bifurcated into separate adjudicatory and dispositional hearings because the issues raised and the procedures used at each hearing differ. The issue at the adjudicatory stage of a dependency case is whether petitioner has proven, by clear and convincing evidence, that the child is in fact dependent. The issue at the dispositional stage involves a determination of what is in the child’s best interests. There must be strict adherence to the Rules of Evidence at the adjudicatory stage. Yet, “any evidence that is material and relevant, including hearsay, opinion and documentary evidence,” is admissible at the dispositional stage. Juv. R. 34(B)(2). Accordingly, we find that the trial court committed reversible error by failing to follow specifically the Juvenile Rules and the Revised Code by not bifurcating the adjudicatory and dispositional hearings. The third issue in this case is whether, after a dispositional order made pursuant to R.C. 2151.353(A)(4), a juvenile court must make an attempt to reunify the family by ordering the preparation of a reunification plan. After a child has been adjudicated dependent in an action and a disposition is to be made pursuant to R.C. 2151.353, the court has four options. The court may permit the child to remain with the parent subject to court conditions and limitations, including supervision. R.C. 2151.353(A) (1). The court may commit the child to the temporary custody of the welfare department, county children services board, either parent or a relative, or a probation officer. R.C. 2151.353(A)(2). The court may commit the child to the temporary custody of any institution authorized by the state to provide care or treatment to the child, R.C. 2151.353(A)(3), or the court may commit the child to the permanent custody of the welfare department, R.C. 2151.353(A)(4). R.C. 2151.412(A) requires that if the [234] R.C. 2151.353(A)(2) or (3) options are utilized, the welfare department must submit an initial plan to reunite the family. In the instant case, the juvenile court utilized the R.C. 2151.353(A)(4) option and granted permanent custody to the welfare department. R.C. 2151.412 does not require that a court order a reunification plan when it makes disposition pursuant to R.C. 2151.353(A)(4). Therefore, we hold that the trial court committed no error by not requiring that a reunification plan be filed and implemented. It should be noted that it is not the intention of this court to suggest that the juvenile court is forbidden, upon remand and reconsideration, from finding Baby Girl Baxter dependent and from terminating the parental rights of Evelyn Baxter if the facts and law support such action. We have simply stated that the court may not make those determinations unless: (1) Evelyn Baxter is represented in all juvenile court proceedings by an attorney who zealously represents her within the bounds of the law, and (2) the court holds separate adjudicatory and dispositional hearings. Furthermore, the court may order that Baby Girl Baxter remain in the custody of the welfare department pending further legal proceedings. The judgment of the court of appeals is hereby reversed and this cause is remanded to the juvenile court for further proceedings not inconsistent with this opinion. Judgment reversed and cause remanded. Sweeney, Locher and C. Brown, JJ., concur. Celebrezze, C.J., concurs separately. Wright, J., concurs in judgment only. Holmes, J., dissents.