Christopher, In re

• Decision Date: 23 August 1977
• Citation: 376 N.E.2d 603,8 O.O.3d 271,54 Ohio App.2d 137
• Parties: , 8 O.O.3d 271 In re CHRISTOPHER.
• Court: Ohio Court of Appeals

Page 137

54 Ohio App.2d 137

376 N.E.2d 603, 8 O.O.3d 271

In re CHRISTOPHER.

Court of Appeals of Ohio, Fifth District, Morrow County.

Aug. 23, 1977.

Syllabus by the Court

1. Where an infant child has been in the custody of prospective adoptive parents as a result of a permanent order of custody in a dependency action and that permanent order is subsequently vacated and the parent moves to terminate temporary custody, it appears that the interests of the child and parent may conflict and a guardian ad litem must be appointed for the child pursuant to Juvenile Rule 4(B) prior to the hearing on the mother's motion to terminate custody.

2. The guardian ad litem appointed for a child in a dependency action where the interest of the child and the parent may conflict must have no ties or loyalties to anyone with an adversary interest in the outcome such as a natural parent or the prospective adoptive parents.

3. Where a natural parent moves to terminate temporary custody in another based on a previous finding of dependency, the parent's present suitability and fitness for the role of parent must be considered in the context of the child's best interests.

Thomas E. Ray, Cardington, for appellee, Sheila Christopher Sherman.

Michael Boller, Sidney, guardian ad litem and appellant, for himself.

DOWD, Judge.

This is an appeal prosecuted by a guardian ad litem of a child now nearly four years of age. The appeal contests the termination of a temporary custody order based on a previous finding of dependency. The termination has the dual effect of returning the child, Shawn Christopher, to his natural mother and taking him from his prospective adoptive parents. A chronological history of the proceedings follows.

Shawn Christopher was born on September 14, 1973, and nine months later taken from his mother following a filing of a complaint in the Juvenile Court of Morrow County alleging Shawn to be a dependent child. ¹

On July 1, 1974, the Juvenile Court declared Shawn to be a dependent child and granted custody to the Morrow County Welfare Department.

On August 30, 1974, and without intervention or order from the Juvenile Court, the Morrow County Welfare Department placed Shawn with his mother. That arrangement lasted until January 11, 1975, when Shawn was retrieved from his mother after she had temporarily abandoned the child with friends.

On September 30, 1975, permanent custody was granted to the Morrow County Welfare Department and Shawn was placed with prospective adoptive parents.

On April 5, 1976, Shawn's mother filed an action in habeas corpus seeking custody of Shawn and challenging the validity of the permanent custody order of September 30, 1975.

On August 12, 1976, the writ of habeas corpus was denied but the Morrow County Juvenile Court, on its own motion, vacated its prior permanent custody order. ²

Shawn's mother then filed a notice of appeal on August 25, 1976, but subsequently dismissed the appeal and on November 29, 1976, filed a motion to terminate temporary custody of the Morrow County Welfare Department.

On December 7, 1976, the prosecuting attorney of Morrow County filed, on behalf of the Morrow County Welfare Department, a motion for permanent custody of Shawn.

The motions came on for hearing on December 16, 1976. A visiting judge was assigned to hear the motion. The visiting judge dismissed the motion for permanent custody because the motion did not set forth the grounds upon which the request was based and also because the necessary notice requirements had not been met. The trial court then heard testimony in support of the motion to terminate the temporary custody. ³ At the conclusion of the hearing, the trial court opined:

"Court: Well, I have been a juvenile judge for 291/2 years, and I never had a case that gave me any more difficulty than this, more difficulty to decide than this one, and one in which I felt the decision I feel compelled to render displeases me any more. A real tragedy has occurred here and the traumatic impact on this child is going to be horrendous no doubt. At the same time we can't deprive parents of their children permanently and place them for adoption simply because somebody else can provide somewhat better homes. If that were the criteria we would all lose our children because there is always someone who could provide a somewhat better home than what we have. There is no question, this mother has not been an ideal mother, but there is no showing as of this time, that she is unsuitable, and the Court's decision has to be based on what the conditions are now. Now, we have, of course, to take into consideration what has transpired in the past as prologue and give that due consideration in making our present determination, but at the same time, this mother has rights. And there is no question but what, in this case, she has a right to the custody of her child as unpleasant as it may be to some of us in the court room. She has a right to the child, and it's this Court's duty to see that the child is returned to her.

"Now, the Court's ruling is going to be that the status of the child as a dependent child continues. However, Section 2151.353 provides when a child is found to be dependent the Court may permit the child to remain with his parents, guardian or other custodian, subject to such conditions and limitations as the Court prescribes, including supervision as directed by the Court for the protection of the child.

"It is the order of this Court that the motion to terminate the temporary custody of the Morrow County Welfare Department is well taken and sustained. However, the Court finds that the child's status as a dependent child continues and therefore, the Court will order the child returned to the mother's custody under the supervision of the Court.

"Now I cannot under the circumstances order this child returned forthwith. I am going to order the Morrow County Welfare Department to see that the child is returned to the custody of the mother on December 27th so the adoptive home where this child is now won't be torn asunder at this time of year. Mrs. Sherman, you must understand this child continues as a ward of the Court under the supervision of the Court and regular visits will be made to your home by a case worker designated by the Court. And we will expect you to cooperate in every way with the case worker designated.

"I want to point out to you that while you do have rights as parents, those rights can be forfeited by abandonment or neglect or misconduct. So it's important for you to bear this in mind. And I want you to also be aware of the tremendous responsibility, you are taking a child from a home in which he has been for better than a year and I am sure it's a happy home, well adjusted home, and the adjustment for the child is going to be a very severe thing, and we will soon know whether or not you are really capable of being a mother to this child, because you are going to have a tremendous responsibility. I don't think you have any idea, at this point, what you are taking on, and if your marriage survives this, then it's a good marriage, and I hope it does."

At the time of the December 16, 1976, hearing counsel for Shawn's mother was the prosecuting attorney elect of Morrow County, Thomas Ray. Ray has continued to represent Shawn's mother in this appeal. The Morrow County Welfare Department was represented by its designated counsel, the prosecuting attorney of Morrow County, Dean Curl.

Following the December 16, 1976, hearing, Dean Curl, acting as prosecuting attorney of Morrow County, moved the trial court as follows:

"1. To reconsider its decision pronounced from the Bench on December 16, 1976, prior to journalization thereof for the reason that said hearing was procedurally and substantially defective as a matter of law for the reason that a guardian ad litem was not appointed by the Court to protect the interest of Shawn Christopher in said proceedings, the interest of said child and his Mother being in great conflict, said appointment being required as a matter of law by the provisions of JR 4(B);

"2. To appoint a guardian ad litem for Shawn Christopher to protect his interests in any further proceedings relating to his custody, and fix compensation for the services of appointed counsel and/or guardian ad litem ;

"3. To grant a new hearing upon the Motion of Sheila Christopher at which time the guardian ad litem may participate in behalf of Shawn Christopher;

"4. To modify and/or stay the pronouncement of the Court that physical custody of Shawn Christopher be delivered to Sheila Christopher on December 28, 1976;

"5. To grant an oral hearing upon the foregoing Motion prior to December 31, 1976, at which time the movant's standing in said case would apparently terminate by reason of the expiration of his term as Prosecuting Attorney."

On December 23, 1976, a memorandum-opinion was filed by the trial court. He denied the request for reconsideration of his verbal order of December 16, 1976, but appointed Dean Curl as the guardian ad litem for Shawn Christopher and stayed execution of his verbal order of December 16, 1976, pending appeal and directed that Shawn Christopher remain in the proposed adoptive home pending review and further orders.

On January 18, 1977, the trial court's ruling of December 16, 1976, terminating custody of the Morrow County Welfare Department and his memorandum-opinion of December 23, 1976, were each journalized so that the order to return Shawn to his mother was stayed and Dean Curl was appointed as guardian ad litem and counsel for Shawn.

On February 9, 1977, the resignation and withdrawal of Dean Curl as guardian ad litem and counsel was filed and on the same day Michael Boller of Sidney, Ohio, was appointed successor guardian ad litem.

On February 17, 1977, Mr. Boller moved for further hearing on the motion to terminate the custody of the Morrow County Welfare Department or in the...