[Cite as In re J.P., 2015-Ohio-4687.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

In the Matter of: : 

[J.P., : No. 15AP-193 

 (C.P.C. No. 11JU-0144)

 Appellee, : 

 (ACCELERATED CALENDAR) 

E.P.B., : 

 

 Appellant]. : 

In the Matter of: : 

[Ja.P., : No. 15AP-194 

 (C.P.C. No. 11JU-0143)

 Appellee, : 

 (ACCELERATED CALENDAR) 

E.P.B., : 

 

 Appellant]. : 

 

D E C I S I O N 

Rendered on November 12, 2015 

 

Brian L. Herzberger Co., L.P.A., and Brian L. Herzberger, 

for appellant. 

Cynthia M. Roy, for K.T. 

 

APPEALS from the Franklin County Court of Common Pleas, 

Division of Domestic Relations, Juvenile Branch 

LUPER SCHUSTER, J. 

{¶ 1} Appellant, E.P.B., maternal grandmother, appeals from judgments of the 

Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile 

Branch, awarding legal custody of her grandchildren J.P. and Ja.P. to the children's 

paternal grandmother, K.T. For the following reasons, we affirm.
Nos. 15AP-193 and 15AP-194 2 

I. Facts and Procedural History 

{¶ 2} This matter began when dependency complaints were filed on July 28, 2011 

concerning J.P. (date of birth August 14, 2009) and Ja.P. (date of birth February 26, 2011) 

(collectively "the children"). On the same day, the trial court issued temporary orders of 

protective supervision. The trial court appointed Eric Hoffman in the dual capacity as 

attorney and guardian ad litem for the children. The trial court also appointed attorneys 

for the children's mother, S.B., and father, Je.P. The matter proceeded uncontested as to 

the dependency of the children. 

{¶ 3} On December 7, 2011, maternal grandmother of the children moved for 

legal custody of the children. Six days later, the trial court granted maternal grandmother 

temporary custody of the children. On March 6, 2012, the guardian ad litem filed a report 

recommending the trial court extend the court ordered protective supervision. On 

March 27, 2012, the trial court ordered the children to be under the protective supervision 

of the Franklin County Children Services, denied maternal grandmother's request for 

legal custody of the children, but continued maternal grandmother's temporary custody. 

On April 3, 2013, paternal grandmother moved for legal custody of the children. On 

May 29, 2013, the guardian ad litem reported to the court that the children appeared "to 

be very bonded with their maternal grandmother," and he advised it would be in the 

children's best interest to remain in the custody of the maternal grandmother, with a 

liberal visitation schedule as to the paternal grandmother. (15AP-193, Supplemental 

Report of Guardian Ad Litem, 4.) On May 31, 2013, the trial court ordered alternating 

weekend visits between paternal grandmother and the children. On June 10, 2013, 

paternal grandmother moved for contempt, alleging maternal grandmother failed to 

comply with the court-ordered visitation.

{¶ 4} In September and December 2013 and January 2014, the grandmothers' 

motions for custody of the children were tried before the court. At the trial, the court 

heard testimony from Franklin County Children Services caseworkers, both 

grandmothers, and paternal grandmother's private investigator. The guardian ad litem 

also testified and recommended that the trial court award custody of the children to 

paternal grandmother based on the testimony at trial. Counsel for maternal grandmother 

asserted there was a conflict between the guardian ad litem's recommendation and the 

wishes of the children, necessitating the appointment of new counsel. No party requested 
Nos. 15AP-193 and 15AP-194 3 

an in camera interview of the children. However, the magistrate directed the guardian ad 

litem to meet with the children after they separately visited with each grandmother. After 

this occurred, the guardian ad litem reported to the magistrate his observations regarding 

the wishes of the children, essentially indicating there was no clear expression of 

preference communicated by the children. The magistrate concluded no conflict existed 

and awarded legal custody of the children to paternal grandmother.

{¶ 5} Maternal grandmother filed objections to the magistrate's decision, arguing 

in part the magistrate erred in not appointing new counsel for the children. The trial 

court overruled maternal grandmother's objection regarding the magistrate's decision not 

to appoint new counsel for the children, and affirmed the award of custody to paternal 

grandmother. Maternal grandmother timely appeals. 

II. Assignment of Error 

{¶ 6} Maternal grandmother assigns the following single error for our review: 

The trial court erred by failing to appoint separate counsel for 

the children, J.P., and [Ja.P.], when it had become clear that 

the recommendation of the guardian ad litem was in 

opposition to the wishes of the children to remain in the 

custody of the appellant. 

III. Discussion 

{¶ 7} In maternal grandmother's single assignment of error, she asserts the trial 

court erred in not appointing separate counsel for the children before awarding custody of 

the children to paternal grandmother. 

{¶ 8} As noted above, the trial court appointed Hoffman in the dual capacity of 

guardian ad litem and counsel for the children. "Generally, when an attorney is appointed 

as guardian ad litem, that attorney may also act as counsel for the child, absent a conflict 

of interest." In re Janie M., 131 Ohio App.3d 637, 639 (6th Dist.1999). "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." In re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985). 

R.C. 2151.281(H) addresses the dual appointment of a guardian ad litem as counsel and 

provides in part as follows: 

Until the supreme court adopts rules regarding service as a 

guardian ad litem that regulate conflicts between a person's 

role as guardian ad litem and as counsel, if a person is serving 

as guardian ad litem and counsel for a child and either that 
Nos. 15AP-193 and 15AP-194 4 

person or the court finds that a conflict may exist between the 

person's roles as guardian ad litem and as counsel, the court 

shall relieve the person of duties as guardian ad litem and 

appoint someone else as guardian ad litem for the child. 

Effective March 1, 2009, the Supreme Court of Ohio adopted a new rule, Rule 48 of the 

Rules of Superintendence for the Courts of Ohio to govern guardian ad litem standards in 

Ohio. Sup.R. 48(D)(8) provides: "When a guardian ad litem determines that a conflict 

exists between the child's best interest and the child's wishes, the guardian ad litem shall, 

at the earliest practical time, request in writing that the court promptly resolve the conflict 

by entering appropriate orders." Additionally, Ohio Rule of Juvenile Procedure 4(C)(2) 

provides: "If a person is serving as guardian ad litem and as attorney for a ward and either 

that person or the court finds a conflict between the responsibilities of the role of attorney 

and that of guardian ad litem, the court shall appoint another person as guardian ad litem 

for the ward." 

{¶ 9} A conflict in this context typically arises when the guardian ad litem's 

determination of the child's best interest differs from the child's wishes. Baby Girl Baxter

at 232. See In re J.M., 12th Dist. No. CA2008-12-148, 2009-Ohio-4824, ¶ 19 (because the 

guardian ad litem is permitted to maintain dual roles in a custody dispute, "a court is not 

required to appoint separate counsel unless the [guardian ad litem's] recommendations 

regarding their best interest conflict with the children's wishes"). In determining whether 

a conflict exists, courts should make a determination, on a case-by-case basis, whether the 

child actually needs independent counsel, taking into account the maturity of the child. In 

re B.K., 12th Dist. No. CA2010-12-324, 2011-Ohio-4470, ¶ 19. Generally, the appointment 

of independent counsel is necessary when the child has "consistently and repeatedly 

expressed a strong desire that is inconsistent with the guardian ad litem's 

recommendations." In re M.H., 12th Dist. No. CA2012-11-035, 2013-Ohio-1063, ¶ 34; see 

In re B.W., 9th Dist. No. 12CA0016-M, 2012-Ohio-3416, ¶ 42. 

{¶ 10} Here, maternal grandmother argues one person should not have served in 

the dual role of guardian ad litem and counsel for the children once the guardian ad litem 

recommended paternal grandmother be awarded custody, and, therefore, it was error for 

the trial court not to appoint new counsel or a new guardian ad litem. Maternal 

grandmother argues the children expressed a desire to stay with her, and, alternatively, 
Nos. 15AP-193 and 15AP-194 5 

insofar as their expression was not enough for a finding of a conflict, it was necessary for 

the trial court to obtain reliable evidence concerning the children's wishes before 

awarding custody. According to maternal grandmother, this could only occur with 

separate counsel and guardian ad litem. In support of her position, maternal 

grandmother cites In re Swisher, 10th Dist. No. 02AP-1408, 2003-Ohio-5446. 

{¶ 11} In Swisher, this court reversed the granting of permanent custody of 

children to Franklin County Children Services because the trial court did not consider the 

children's wishes. Id. at ¶ 41. This court remanded the matter in Swisher noting that a 

trial court, in deciding whether to grant permanent custody of the children to a public 

children services agency, must evaluate, to the extent possible, the wishes of the children 

by means of reliable evidence. Id. at ¶ 43. This court further explained: "should the 

wishes of the children, as expressed either directly by them or through the guardian ad 

litem, evidence a strong desire to be reunited with [the mother], and should the guardian 

ad litem's position regarding the best interest of the children conflict with those wishes, 

the trial court should appoint separate counsel to represent the children." Id. at ¶ 44. 

Thus, in Swisher there was no evidence regarding the wishes of the children. 

{¶ 12} Maternal grandmother's arguments are unpersuasive, and her reliance on 

Swisher is misplaced. Unlike Swisher, the trial court in this case considered, to the extent 

possible, the wishes of the children. Maternal grandmother does not argue that Ja.P., the 

youngest child, was incapable of reliably communicating her wishes. However, as to the 

older child, J.P., maternal grandmother argues there was some evidence regarding his 

desire to remain with her. While this is true, there was also evidence of J.P.'s desire to live 

with paternal grandmother. Before trial, the guardian ad litem recommended the 

children remain with maternal grandmother. On hearing the trial testimony of the other 

witnesses, the guardian ad litem changed his opinion and recommended the award of 

custody to paternal grandmother. After the guardian ad litem testified, counsel for 

maternal grandmother indicated it was his and his client's understanding that J.P. 

expressed a desire to be with maternal grandmother. The guardian ad litem explained he 

had not recently discussed the children's wishes regarding custody with them. As a result, 

the magistrate directed the guardian ad litem to meet with the children twice, once after a 

visit with maternal grandmother and once after a visit with paternal grandmother. 
Nos. 15AP-193 and 15AP-194 6 

{¶ 13} After meeting with the children as directed, the guardian ad litem reported 

back with equivocal findings. The guardian ad litem indicated the younger of the two 

children, Ja.P., was unable to communicate her wishes—the "youngest one is just so 

young that there's really not much you can -- you can get there at all." (15AP-193, Jan. 27, 

2014 Tr. 7.) As to the older child, J.P., the guardian ad litem indicated J.P. did not 

communicate a clear desire to be with maternal grandmother. The guardian ad litem 

explained that J.P. indicated a preference for the grandmother he had just visited. 

Additionally, the guardian ad litem reported J.P.'s stated desire to be with maternal 

grandmother had a parroting characteristic, as if he was coached to make a certain 

statement. The guardian ad litem viewed the information he received from J.P. as 

"uncertain," or even demonstrating a preference toward paternal grandmother. (15AP193, Jan. 27, 2014 Tr. 8.) When viewed in context, the information provided by J.P. to the 

guardian ad litem did not demonstrate a clear and consistent wish to be with maternal 

grandmother. This lack of clarity is unsurprising considering J.P.'s young age at the time 

of trial. See In re K. & K.H., 8th Dist. No. 83410, 2004-Ohio-4629; In re G.C. & M.C., 8th 

Dist. No. 83994, 2004-Ohio-5607, ¶ 9 (inconsistency as to a four-year-old child's wishes 

"only underscores the lack of cognitive maturity necessary for the appointment of 

independent counsel"). 

{¶ 14} For these reasons, we conclude that because the trial court did not abuse its 

discretion in finding no conflict between the children's wishes and the recommendation of 

the guardian ad litem, it was not error for the trial court to decide not to appoint new 

counsel or a new guardian ad litem for the children. Accordingly, maternal grandmother's 

single assignment of error is overruled. 

IV. Disposition 

{¶ 15} Having overruled maternal grandmother's single assignment of error, we 

affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic 

Relations, Juvenile Branch. 

Judgment affirmed. 

TYACK and HORTON, JJ., concur.