878 N.E.2d 49 (Ohio App. 4 Dist. 2007), 06CA3084, In re A.G.B.

Docket Nº:06CA3084.
Citation:878 N.E.2d 49, 173 Ohio App.3d 263, 2007-Ohio-4753
Opinion Judge:KLINE , Judge.
Party Name:In re A.G.B.
Attorney:Michael L. Jones , Lima, for appellant, Janice N. Swords. Catherine S. Heid , West Portsmouth, for appellee, Jason C. Bashaw.
Judge Panel:PETER B. ABELE , J., dissents.HARSHA , J., concurring.
Case Date:September 05, 2007
Court:Court of Appeals of Ohio
 
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878 N.E.2d 49 (Ohio App. 4 Dist. 2007)

173 Ohio App.3d 263, 2007-Ohio-4753

In re A.G.B.

No. 06CA3084.

Court of Appeals of Ohio, Fourth District, Scioto.

September 5, 2007

Page 50

Michael L. Jones , Lima, for appellant, Janice N. Swords.

Catherine S. Heid , West Portsmouth, for appellee, Jason C. Bashaw.

KLINE , Judge.

[173 Ohio App.3d 265] {¶ 1} Janice N. Swords (“Mother" ) appeals the judgment of the Scioto County Court of Common Pleas, Juvenile Division, overruling her objections and confirming the magistrate's decision awarding custody of her daughter, A.G.B., to Jason C. Bashaw (“Father" ). Mother contends that the trial court erred in failing to appoint a guardian ad litem (“GAL" ) to protect A.G.B.'s interests, as required by R.C. 2151.281(B)(1) and Juv.R. 4(B)(5) . Because we find that the trial court failed to

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comply with the requirements of R.C. 2151.281(B)(1) and Juv.R. 4(B)(5) , which mandate the appointment of a GAL in any proceeding concerning an alleged abused or neglected child, we agree. Mother also contends that the trial court erred by failing to consider all of the best-interest factors enumerated in R.C. 3109.04(F) and that those factors demonstrate that it is in A.G.B.'s best interest to remain in Mother's custody. Because we find that our resolution of Mother's first assignment of error renders this assignment of error moot, we decline to address it. Accordingly, we sustain Mother's first assignment of error, decline to address her second assignment of error, reverse the judgment of the trial court, and remand this cause with instructions for the court to appoint a GAL to represent A.G.B.'s interests and to conduct further proceedings consistent with this opinion.

I

{¶ 2} The record reveals that Mother and Father married. They divorced in 2002, and the Scioto County Court of Common Pleas, Domestic Relations Division, awarded Mother custody of A.G.B., born August 30, 1998. The domestic relations court also awarded Father visitation with A.G.B. and ordered him to pay child support.

{¶ 3} On December 28, 2004, Father filed a sworn complaint for custody for reasons of abuse, neglect, and/or dependency in the Scioto County Court of Common Pleas, Juvenile Division, and sought an order granting him legal custody of A.G.B. Additionally, Father filed a motion for emergency custody, wherein he alleged various incidents of abuse and neglect that A.G.B. suffered while in her mother's care.

{¶ 4} The trial court assigned the case to the juvenile court magistrate and set the matter for an adjudicatory hearing on February 2, 2005. The magistrate continued that hearing to May 24, 2005, in order to appoint counsel to represent Mother in the proceedings. However, due to time constraints, the court converted the May hearing to a pretrial and again continued the adjudication hearing.

{¶ 5} On October 18, 2005, the magistrate conducted the adjudicatory hearing. The magistrate issued a decision on October 26, 2005, in which he determined by [173 Ohio App.3d 266] clear and convincing evidence that A.G.B. is a neglected child, as defined in R.C. 2151.03(A)(3) , and a dependent child, as defined in R.C. 2151.04(A) . Although the magistrate adjudicated A.G.B. neglected and dependent, he expressly declined to temporarily modify custody pending the dispositional hearing.1

{¶ 6} Neither party objected to the magistrate's decision adjudicating A.G.B. neglected and dependent. The court adopted the decision in its entirety and made it an order of the court.

{¶ 7} The magistrate conducted a dispositional hearing on January 18, 2006, in which he heard the testimony of Father, Mother, and A.G.B.'s stepmother, Nikki Sue Bashaw. The magistrate issued a decision on January 20, 2006. After considering the evidence submitted at the adjudicatory and dispositional hearings, and considering the factors affecting the best interests of the...

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