Superintendence Rule 48: Standardizing the Guardian Ad Litem System in Ohio Courts

Author:Aaron Bruggeman
Position:Will receive his J.D. from Capital University Law School in May 2011
Pages:463-494
 
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Page 463

SUPERINTENDENCE RULE 48: STANDARDIZING THE GUARDIAN AD LITEM SYSTEM IN OHIO COURTS

AARON BRUGGEMAN*

I. INTRODUCTION

Many individuals who are unfamiliar with the juvenile court system have probably never heard the term ―guardian ad litem‖ or understand their role in general. In reality, guardians ad litem are essential to the protection of abused and dependent children because they ensure their ―best interests‖ are represented in courts throughout the country.1The ideal guardian ad litem is ―an advisor and an advocate whose judgment is unclouded by conflicting interests.‖2

A time existed when children lacked the sufficient representation to voice their troubles in a courtroom setting.3The case of little Mary Ellen Wilson reveals the problems present in a society where no one adequately represents children‘s interests.4Mary Ellen‘s circumstances gave rise to public concern for abused and neglected children.5Mary Ellen‘s mother and father died when she was young, and Mr. Thomas and Mrs. Mary McCormack eventually received custody of her because Thomas McCormack claimed to be her biological father.6However, Thomas died

Copyright © 2011, Aaron Bruggeman.

* Aaron Bruggeman will receive his J.D. from Capital University Law School in May 2011. He received his B.A. in Political Science cum laude from Ohio University in May 2008. The author would like to thank Belmont County Juvenile and Probate Judge J. Mark Costine for providing feedback and helpful research assistance while writing this article. He would also like to thank Linda Morgan for her help in discovering and providing various guardian ad litem materials essential to writing this article.

1See DAVID KATNER ET AL., NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN,

NACC RECOMMENDATIONS FOR REPRESENTATION OF CHILDREN IN ABUSE AND NEGLECT

CASES 10 (2001), available at http://www.naccchildlaw.org/resource/resmgr/docs/nacc_ standards_and_recommend.pdf.

2Barbara Glesner Fines, Pressures Toward Mediocrity in the Representation of Children, 37 CAP. U. L. REV. 411, 411 (2008).

3See, e.g., Mary Ellen Wilson: How One Girls Plight Started the Child-Protection Movement, AM. HUMANE ASS‘N, http://www.americanhumane.org/about-us/who-weare/history/mary-ellen.html (last visited Dec. 20, 2010).

4Id.

5Id.

6Id.

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shortly thereafter, and Mary McCormack then married Francis Connolly. Instead of caring for her, they beat her, refused to allow her outside, and gave her inadequate food and clothing.7

Etta Wheeler, a Methodist mission worker, visited the tenants in Mary Ellen‘s apartment building.8Some neighbors informed Mrs. Wheeler that they often heard a child crying.9She eventually investigated and found a child who appeared ―dirty and thin, was dressed in threadbare clothing, and had bruises and scars along her bare arms and legs.‖10

Mrs. Wheeler made multiple attempts to have Mary Ellen removed from the apartment, but authorities refused to intervene.11Eventually, she persuaded Henry Bergh, the founder and president of the Society for the Prevention of Cruelty to Animals, to present Mary Ellen‘s case to the judge.12He ultimately persuaded a judge to hear the case, and multiple neighbors agreed to testify.13Eventually, the court removed Mary Ellen from the Connolly‘s household, and public outcry over the situation arose.14Ultimately, the New York Times published multiple stories on Mary Ellen, and these stories led to the creation of organizations and agencies that advocated for enforcement of rules to protect abused and neglected children.15

Even though statutes and associations across the country now provide for protection of children exposed to such atrocities, child abuse and neglect persist to this day.16A poem, His Name Is Today, eloquently describes the importance of adequate representation for the needs of children:

We are guilty of many errors and many faults,

But our worst crime is abandoning the children, Neglecting the fountain of life.

Many of the things we need can wait,


7See id.

8Id.

9Id.

10Id.

11Id.

12Id.

13Id.

14See id.

15Id.

16See, e.g., Child Maltreatment, NAT‘L ASS‘N OF COUNSEL FOR CHILDREN, http://www.

naccchildlaw.org/?page=ChildMaltreatment (last visited Dec. 20, 2010).

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The child cannot wait.

Right now is the time bones are being formed, His blood is being made,
And his senses are being developed.

To him we cannot answer ‗tomorrow.‘

His name is Today.17

This poem clearly articulates the important role guardians ad litem serve in the juvenile court system. These individuals ensure that courts take notice of the specific conditions that neglected and abused children endure. A guardian ad litem aids in ensuring that cases like that of Little Mary Ellen will cease to exist.

The problem in Ohio, however, is the lack of proper statutory guidance for guardians ad litem.18The case of In re Christopher19exhibits why the use of a guardian ad litem could still prevent a child from having his best interests represented in court. The Morrow County Welfare Department placed Shawn Christopher with prospective adoptive parents.20Shawn‘s mother lost custody because she displayed little interest in him following his birth.21His mother eventually moved to have the temporary custody by the welfare department terminated, and the Morrow County Court granted her motion without naming a guardian ad litem to represent Shawn‘s interests.22

On appeal, the Ohio Fifth District Court of Appeals vacated the judgment and remanded the case for a new proceeding23because the interests of Shawn and his mother conflicted.24His mother‘s interest was to obtain custody of Shawn, despite the prior neglect.25Because of the prior neglect, reunification with his mother was not in Shawn‘s best

17CENTRE FOR HEALTH EDUCATION, TRAINING AND NUTRITION AWARENESS (CHETNA),

HIS NAME IS TODAY (BOOKLET 4), http://www.bernardvanleer.org/files/chetna/Child_rights _booklet-4.pdf (last visited Mar. 29, 2011).

18See OHIO TASK FORCE ON FAMILY LAW AND CHILDREN, FAMILY LAW REFORM:

MINIMIZING CONFLICT, MAXIMIZING FAMILIES 20 (2001), available at http://www.supreme

court.ohio.gov/JCS/taskforce/report_final.pdf.

19376 N.E.2d 603 (Ohio Ct. App. 1977).

20Id. at 605.

21Id. at 607.

22Id. at 605–06.

23Id. at 609.

24Id. at 607.

25Id. at 605.

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interests.26For this reason, the appellate court concluded that the trial court should have appointed a guardian ad litem to represent Shawn‘s interests.27Its failure to do so required a remand for a new proceeding.28Even though a rule detailing the appointment of a guardian ad litem was in effect during that custody proceeding,29the trial court failed to appoint one.30

This case also exhibited another recurring problem faced by Ohio courts in the absence of a statewide standard.31The trial court ultimately appointed a guardian ad litem, but the appointment was made subsequent to the mother‘s termination hearing.32The person named guardian ad litem was Michael Boller,33who conceded to the appellate court that he had ties with Shawn‘s adoptive parents.34

For that reason, the appellate court concluded that Mr. Boller should no longer serve as Shawn‘s guardian ad litem.35It reasoned that the guardian ad litem ―should be a person or persons who can serve uninhibited by any ties or loyalties with either the mother of Shawn Christopher or the proposed adoptive parents of Shawn Christopher.‖36

Thus, a guardian ad litem should be a disinterested individual who is capable of representing the child‘s best interests to the court.

The guardian ad litem is important to the judicial system specifically because these individuals ensure that courts hear the interests of abused and neglected children. If proper standards for governing guardians ad litem are nonexistent, the interests of these children may be significantly affected. Thus, an unambiguous statewide standard is essential.

This article argues that the enactment of Ohio Superintendence Rule 48 provides a statewide standard in which Ohio courts can now regulate


26Id. at 607.

27Id.

28Id.

29See, e.g., OHIO R. JUV. P. 4(B) (detailing when the court should appoint a guardian ad litem to protect a child‘s best interest in a juvenile court proceeding).

30In re Christopher, 376 N.E.2d at 606.

31See, e.g., In re A.G.B., 878 N.E.2d 49, 52, 54 (Ohio Ct. App. 2007) (finding the trial court failed to appoint a guardian ad litem as required by Ohio‘s Juvenile Rules of Procedure).

32In re Christopher, 376 N.E.2d at 606–07.

33Id. at 606.

34Id. at 607.

35Id.

36Id.

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guardians ad litem to ensure that they represent the best interests of children. Part II first provides an overview of the guardian ad litem system in Ohio prior to Rule 48. It focuses on various cases and local court rules that articulated standards of compliance for guardians ad litem.

The article then explores Ohio Superintendence Rule 48 in-depth. Part III familiarizes readers with Rule 48 by focusing on its major components. Next, Part IV analyzes Rule 48 by comparing it to various local court rules as well as standards articulated in case law. This section shows the...

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