Baby Girl Baxter, In re

• Decision Date: 12 June 1985
• Docket Number: No. 84-1340,84-1340
• Citation: 479 N.E.2d 257,17 Ohio St.3d 229
• Parties: , 17 O.B.R. 469 In re BABY GIRL BAXTER.
• Court: Ohio Supreme Court

Page 229

17 Ohio St.3d 229

479 N.E.2d 257, 17 O.B.R. 469

In re BABY GIRL BAXTER.

No. 84-1340.

Supreme Court of Ohio.

June 12, 1985.

Syllabus by the Court

1. In proceedings where parental rights are subject to termination, both the Juvenile Rules and the Revised Code prescribe that such proceedings be bifurcated into separate adjudicatory and dispositional hearings. (R.C. 2151.35 and Juv.R. 29 and 34, construed and applied.)

2. R.C. 2151.412 does not require a juvenile court to order a reunification plan when it makes a dispositional order pursuant to R.C. 2151.353(A)(4).

Appellant, Evelyn Baxter, appeals from a judgment of the Court of Appeals for Carroll County which affirmed the decision of the Carroll County Juvenile Court. The juvenile court held that Baby Girl Baxter, the infant daughter of Evelyn Baxter, was a dependent child within the meaning of R.C. 2151.04(B) and (C) and that the child's best interests would be served by removing her from her mother's custody and granting permanent custody to appellee, Carroll County Welfare Department.

Appellant, Evelyn Baxter, is an unmarried, forty-four year old woman who is mildly mentally retarded. She lives with her sister, Thelma Dinger, and her brother, Harold Dinger, in a three-bedroom trailer home in Carrollton, Ohio. On February 11, 1983, Evelyn gave birth to a baby girl. Shortly before the child's birth, Thelma contacted appellee, Carroll County Welfare Department, and informed the agency that Evelyn was pregnant and was interested in giving up custody of her child. Shortly after the baby's birth, Evelyn decided to keep her baby.

The welfare department initiated a shelter-care proceeding pursuant to Juv.R. 7. The Carroll County Juvenile Court appointed attorney John Heflin to be guardian ad litem for Evelyn Baxter. Attorney Charles Johnston was appointed guardian ad litem for Baby Girl Baxter. On February 18, 1983, a shelter-care hearing was held and Evelyn agreed to place her child in the temporary custody of the Carroll County Welfare Department pending further legal proceedings.

On February 24, 1983, the welfare department filed a complaint in the juvenile court alleging that Baby Girl Baxter was a dependent child. The complaint stated:

" * * * that on or about February 23rd, 1983, she [Baby Girl Baxter] lacks proper care or support of [sic] reason of the mental or physical condition of her parents * * * and her condition or environment is such as to warrant the state, in the interests of the child, in assuming her guardianship, to-wit: the mother is mentally incapable of caring for the child * * *. Further, the Carroll County Welfare Department prays for permanent custody."

Heflin waived service of summons and entered his appearance as guardian ad litem and counsel for Evelyn Baxter. He then filed a motion asking the juvenile court to order a complete mental and physical examination of his client. The court granted the motion and the examinations were completed. In addition, the welfare department conducted a home investigation of Evelyn's residence.

On June 27, 1983, the court held a single evidentiary hearing simultaneously covering the adjudication and disposition of the status and custody of Baby Girl Baxter. During the hearing the parties agreed to admit the reports of Evelyn's mental and physical examinations into evidence along with the report of the welfare department regarding the home investigation. Three witnesses--a social worker from the welfare department, the clinical psychologist who examined Evelyn, and Evelyn herself--testified at the hearing. Their combined testimony constitutes only thirty-one pages of transcript.

At the conclusion of the combined hearing, the court ordered a ten-minute recess. At the conclusion of the recess, the trial judge reconvened court "for the purpose of final adjudication and disposition." The court then held that "there has been established by clear and convincing evidence" that Baby Girl Baxter is a dependent child as alleged in the complaint. The judge stated:

"These cases are always difficult and it is not likely [sic] that a Court terminates parental right but under the circumstances we have a natural mother who is now age 44, with a seventh grade education, receiving Social Security disability or SSI benefits of some description, is unable to drive, having a child out of wedlock, not the first child [she has had out of wedlock], but a child she now desires to keep in her custody * * * the Court feels that it is in the best interests of the child to be placed in a home environment with two full time parents who are more capable economically and more capable to provide for the mental and emotional development of the child and to provide for its social needs as far as interaction and so forth. If there were a likelihood that these circumstances with Ms. Baxter were to change the Court might look favorably upon a reunification program of some kind but because of [the psychologist] Dr. Estepp's testimony indicating that there is chronic irreversible organic brain syndrome it is unlikely that the situation is going to improve dramatically * * *."

On June 29, 1983, the court journalized its decision. Heflin filed a notice of appeal and withdrew from the case. The court of appeals appointed Southeastern Ohio Legal Services to represent Evelyn in the appeal. On June 20, 1984, the appellate court affirmed the juvenile court's judgment.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

John C. Childers, Asst. Pros. Atty., for appellee.

Southeastern Ohio Legal Services and Marie Losurdo, Dayton, for appellant.

Theodore Kern, Columbus, urging reversal for amicus curiae, Ohio Legal Rights Service.

National Center for Youth Law and Teresa Demchak, Cleveland, urging reversal for amici curiae, William and Jeannine Deweese.

Burnstein, Walker & Bull and Robert Walker, urging reversal for amicus curiae, Ass'n for Retarded Citizens of Cuyahoga County.

Douglas A. Baker, Columbus, urging reversal for amicus curiae, Ohio Psychological Ass'n DOUGLAS, Justice.

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, 399 N.E.2d 66 . 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 testimony 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.

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...