In re G.C. & M.C., 2004 Ohio 5607 (OH 10/21/2004)
| Decision Date | 21 October 2004 |
| Docket Number | Case No. 83994. |
| Citation | 2004 Ohio 5607 |
| Parties | In re: G.C. & M.C. |
| Court | Ohio Supreme Court |
Appeal from Common Pleas Court, Juvenile Division, Case Nos. AD 03900414 & 03900415.
Affirmed.
Christopher Lenahan, 614 West Superior Ave., Suite 1300, Cleveland, OH 44113, for Appellant-Mother.
William D. Mason, Cuyahoga County Prosecutor, Joseph C. Young, Assistant, 3343 Community College Avenue, Corridor F Cleveland, OH 44115, for Appellee Cuyahoga County Department of Children and Family Services.
Theodore Amata, 1831 West 54th Street,
Cleveland, OH 44102, Guardian Ad Litem/Mother.
Mark Witt 6209 Barton Road North Olmsted, OH 44070, Guardian Ad Litem/Children.
{¶ 1} Appellant-mother appeals the judgment of the Cuyahoga County Common Pleas Court, Juvenile Division, awarding permanent custody of her children, G.C. & M.C., to the Cuyahoga County Department of Children and Family Services. For the reasons that follow, we affirm.
{¶ 2} Appellant is the mother of G.C. & M.C., whose dates of birth are June 20, 1999 and April 24, 2001, respectively. In January 2001, the Cuyahoga County Department of Children and Family Services ("CCDCFS") removed G.C. from appellant's home based on allegations of neglect and dependency. M.C. was removed in May 2001, shortly after her birth, apparently for the same reason. The children were reunited1 with appellant in July 2002, only to be returned to the agency's temporary custody approximately three weeks later when appellant was arrested on charges of aggravated murder, attempted murder and felonious assault, as indicted in Cuyahoga County Common Pleas Case No. CR-427460.2 In its amended complaint, CCDCFS alleged that appellant's repeated criminal activity and incarcerations "prevent[ed] her from being able to provide proper care and support for the children."
{¶ 3} The trial court appointed Mark Witt as guardian ad litem for the children. Eventually, Theordore Amata was appointed as guardian ad litem for the mother, in addition to her appointed counsel. Counsel was similarly appointed for the children's respective fathers, although neither is a party to this appeal.3 In March 2003, appellant was acquitted of all charges contained in Case No. CR-427460. In July 2003, however, she was arrested in Cuyahoga County and subsequently indicted for drug-related offenses in Case No. CR-443845. She posted bond but, in August 2003 was arrested yet again, this time in Lorain County, on several charges, including, but not limited to, aggravated murder. She remains in custody at the time of this appeal awaiting trial on those charges.4
{¶ 4} It was CCDCFS's position that permanent custody is in the children's best interests because, among other reasons, appellant is unable to care for her children due to her frequent arrests. At the adjudicatory and dispositional hearing that took place contemporaneously in November 2003, counsel for appellant requested that separate counsel be appointed for G.C, which the court denied. The court ultimately found the children to be neglected and dependent. Relying, in part, on the recommendation of the children's guardian ad litem, the court awarded permanent custody to CCDCFS, finding it in the children's best interests and that there existed "a need for permanency" for the children.
{¶ 5} Appellant is now before this court and assigns five errors for our review.
I. Failure to Appoint Separate Counsel for G.C.
{¶ 6} In her first assignment of error, appellant contends that the trial court erred when it denied her request for the appointment of separate counsel for G.C.
{¶ 7} A juvenile has a right to counsel in a proceeding to terminate parental rights, based on the juvenile's status as a party to the proceeding. See In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, at ¶17, citing In re Janie M. (1999), 131 Ohio App.3d 637, 639. This is so because "a child who is the subject of a juvenile court proceeding" is a "party" to that proceeding according to Juv.R. 2(Y). Id.; see, also, R.C. 2151.352; Juv.R. 4(A). Courts must determine, however, whether the child actually needs independent counsel, taking into account the maturity of the child and the possibility of the child's guardian ad litem being appointed to represent the child. Although a guardian ad litem can serve in the dual roles of advocate and guardian, the Williams court acknowledged the possibility of a "fundamental conflict in a dual-representation situation," noting that the duty of a guardian ad litem is to "recommend to the court what the guardian feels is in the best interest" of the child, while the duty of a lawyer to a child client is "to provide zealous representation" for the child's position. Id. at ¶18.
{¶ 8} We see no need for independent counsel in this case. Appellant relies on comments made by the children's foster mother indicating that G.C. wanted "to see her mother." Appellant equates this comment with a desire on G.C.'s part to live with her mother, which is contrary to the guardian ad litem's recommendation to award permanent custody to CCDCFS.
{¶ 9} As this author expressed in a recent decision of this court, it is unlikely that a fouryear-old child is able to exhibit the level of cognitive maturity sufficient to indicate the need for independent legal counsel. See In re K. & K.H., Cuyahoga App. No. 83410, 2004-Ohio-4629. Indeed, not only did G.C. state that she wished to "see" her mother, she also stated to her guardian ad litem that she wanted to live with the foster mother. As stated by the court, it is not unusual for a young child to express a desire to see his or her parent. In individuals other than the very young, the desire to see one's parent certainly would not equate with a desire to remain in that parent's household. In the very young, such inconsistency only underscores the lack of cognitive maturity necessary for the appointment of independent counsel.
{¶ 10} Appellant's first assignment of error is not well taken and is overruled.
{¶ 12} In her second assignment of error, appellant contends that the trial court erred when it did not allow her to cross-examine the foster mother.
{¶ 13} The record reveals that CCDCFS called the foster mother as its witness. Because CCDCFS did not indicate in discovery that it intended to call this witness, the trial court did not permit CCDCFS to use this witness to prove any allegations contained in the amended complaint. The trial court did, however, inquire of the foster mother as to how the children were doing. The foster mother testified that both children were doing well, but that G.C. had somewhat of a setback upon return from appellant's home in August 2002. Appellant requested the opportunity to crossexamine this witness, to which CCDCFS joined. In refusing to allow appellant to do so, the trial court stated:
{¶ 14} "I allowed the [foster mother] to speak because I think it is important that people that take time off to come down to court and sit all day, part of the day, that they have an opportunity at least to have some say. And I did not want to let this witness leave here without being able to address the court in some limited manner.
{¶ 15} "She should have been a witness, listed as a witness. I was not going to allow her to be treated as an ordinary witness, but I did want to have her speak to me about the children, because I want her to know that this court certainly welcomes her input.
{¶ 16} "So I was not about to send her back out of here because of some technicality in whether she could testify or not. And I am able to, just as I ignore a whole lot [of] other stuff that happened, ignore testimony that is inappropriate.
{¶ 17} "I will sanitize what I heard and will just bear in mind what she said about how the children are doing.
{¶ 18} "They are okay in their placement, how long they have been with her, and that sort of thing.
{¶ 19} "Other things she said about the gun,5 what [G.C.] may or may not have seen, I am not interested in that from this witness.
{¶ 20} "[CCDCFS] would have to take that up with somebody else, if it wishes, but I think it is important that people like that have an opportunity to be heard.
{¶ 21}
{¶ 22} However noble the trial court's intentions, a party is entitled to cross-examine a witness, whether that witness is called by another party or by the court. See, generally, State v. Green (1993), 66 Ohio St.3d 141, 147; see, also, Evid.R. 611(B) and 614(A). Although a trial court has discretion in controlling the mode and order of the interrogation of witnesses and, indeed, may call witnesses and interrogate them in an impartial manner, a trial judge's questions must be relevant and void of a suggestion of bias for one side over another. Id.; see, also, Sandusky v. DeGidio (1988), 51 Ohio App.3d 202, 204, citing State v. Kay (1967), 12 Ohio App.2d 38. In a bench trial where the trial judge acts as the trier-of-fact, however, a reviewing court will presume that the trial court acted impartially and considered only properly admitted evidence. Columbus v. Guthmann (1963), 175 Ohio St. 282, paragraph three of the syllabus; see, also, State v. Post (1987), 32 Ohio St.3d 380, 384, quoting State v. White (1968), 15 Ohio St.2d 146, 151. As such, the trial judge in a bench trial has more freedom in questioning witnesses. See Klasa v. Rogers, Cuyahoga App. No. 83374, 2004-Ohio-4490, at ¶32, citing Lorenc v. Sciborowski (Mar. 16, 1995), Cuyahoga App. No. 66945, 1995 Ohio App. Lexis 951.
{¶ 23} In this case, the trial court expressly stated that it would only consider the testimony about how the children were doing in their current...
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