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In re Moore9/5/2000
1.281(C) states in pertinent part that " n any proceeding concerning a * dependent child in which the parent appears to be mentally incompetent *, the court shall appoint a guardian ad litem to protect the interest of that parent." The statute thus requires that a guardian ad litem be appointed when a parent even appears incompetent, without first requiring a determination that the parent is indeed incompetent.
The appointment of a guardian ad litem does not introduce another adversary against the parent into the proceeding, but rather provides an additional level of protection for the incompetent parent. See, e.g., In re Baxter (1985), 17 Ohio St.3d 229, 232. The statute allows the appointment to be made liberally, which does not infringe on a parent's due process rights but in fact works to ensure that the parent's rights are not compromised. Accordingly, we find this portion of the assignment of error to be without merit.
Williams further contends that " s a factual matter, the trial court violated Appellant's due process rights by appointing her a Guardian-ad litem without first determining that she was incompetent by clear and convincing evidence." Williams contends that such a determination is required by Juv.R. 32(A).
Pursuant to R.C. 2151.281(C), a trial court is required to appoint a guardian ad litem to protect the interest of a parent who appears to be incompetent. The role of the 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." Baxter at 232. The guardian ad litem is appointed to protect the ward's interest, and acts for her benefit. Id.
Although Juv.R.32(A) allows the court to order a mental examination to determine a party's competence, it creates no requirement that the court make a separate determination of competency before appointing a guardian ad litem. Rather, R.C. 2151.281(C) mandates that the trial court appoint a guardian whenever a parent even "appears incompetent." Williams concedes as much in another argument when she states that Juv.R. 32(A)(4) provides "for the possibility of a competency examination." (Emphasis added.)
We further note that the trial court had the benefit of an evaluation conducted by Dr. Walters which indicated that Williams had borderline cognitive abilities. Williams at no time during the proceeding objected to the appointment of a guardian, and concedes in her brief that her guardian represented her adequately. Accordingly, we find no error in the appointment.
Williams also argues that the trial court improperly allowed Heather Felerski to serve as her guardian ad litem after the trial court allowed Felerski to withdraw as Williams' attorney. Felerski was initially appointed as Williams' attorney on July 7, 1997. Although the entry only appointed her to represent Williams as an attorney, both Felerski and the court were under the impression that she was also to serve as Williams' guardian ad litem. The confusion came to light when Felerski petitioned the trial court to withdraw as Williams' attorney due to difficulty communicating with her client. The trial court granted the motion to withdraw, and allowed Felerski to continue to serve as Williams' guardian.
Williams contends that the trial court should not have allowed Felerski to serve as her guardian ad litem in this circumstance. Juv.R. 4(C) expressly allows appointed counsel to also serve as guardian ad litem. However, when a conflict arises between counsel's role as attorney and role as guardian, the trial court should not hesitate to grant a motion to withdraw as guardian ad litem. Baxter, 17 Ohio St.3d at 229.
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