[Cite as In re D.D., 2019-Ohio-4492.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: D.D. : 

: 

: 

APPEAL NO. C-190387 

TRIAL NO. F07-2138Z 

 O P I N I O N.

 

Appeal From: Hamilton County Juvenile Court 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: November 1, 2019 

Jeffrey J. Cutcher, for Appellant Mother, 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Gretta M. Herberth,

Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job 

and Family Services, 

Raymond T. Faller, Hamilton County Public Defender, and Kimberly A. Helfrich, 

Assistant Public Defender, for Appellee Guardian ad Litem. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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MYERS, Presiding Judge. 

{¶1} Mother has appealed from the Hamilton County Juvenile Court’s 

judgment granting permanent custody of her son D.D. to the Hamilton County 

Department of Job and Family Services (“HCJFS”). 

{¶2} Mother does not challenge the sufficiency or the weight of the evidence 

supporting the trial court’s grant of permanent custody, but rather contends that a 

new permanent-custody trial is necessary due to various errors that she claims 

occurred in the proceedings below. Finding mother’s arguments to be without merit, 

we affirm the trial court’s judgment. 

Independent Counsel 

{¶3} In her first assignment of error, mother argues that the trial court 

erred by allowing D.D.’s In re Williams attorney to withdraw during the initial stages 

of the proceedings. And she argues in her second assignment of error that the trial 

court erred by terminating the representation of D.D.’s In re Williams attorney after 

that attorney had been reappointed by the magistrate. As these assignments of error 

are related, we address them together. 

{¶4} At a hearing on September 11, 2018, mother’s counsel requested that 

an In re Williams attorney be appointed for D.D. Mother’s counsel represented to 

the magistrate that D.D. wanted to return home, while his guardian ad litem (“GAL”) 

believed that a grant of permanent custody to HCJFS was in D.D.’s best interest. The 

GAL did not contest mother’s request, stating that while D.D. did not want to return 

home to mother, he had expressed interest in living with a relative. The magistrate 

issued an order appointing an In re Williams attorney for D.D. At a hearing on 
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October 4, 2018, the In re Williams attorney made an oral motion to withdraw from 

representation of D.D. He informed the magistrate that he had engaged in a detailed 

conversation with D.D., and that D.D. was very much in favor of permanent custody 

and wanted the relationship with his mother to be severed. Neither mother, HCJFS, 

nor the GAL objected, and the magistrate granted the request to withdraw. 

{¶5} During a dispositional hearing on November 2, 2018, Melinda 

Webster, who was D.D.’s social worker at Children’s Hospital Medical Center, was 

asked when testifying if D.D. had expressed any feelings about returning to mother’s 

care. Webster testified that D.D. had expressed concern for his little brother, and 

had stated that if he returned home, he would take his little brother and run away 

upon the first disagreement with mother. The magistrate then asked Webster if D.D. 

had stated that he wanted to go home, and after clarifying that the magistrate was 

not referring to any specific period of time, Webster answered affirmatively. The 

magistrate stopped the hearing in progress to appoint an In re Williams attorney for 

D.D. Both HCJFS and the GAL requested that the magistrate reappoint the previous 

In re Williams attorney, with whom D.D. already had a relationship. They also filed 

a joint objection to the magistrate’s decision. The magistrate reappointed the same 

In re Williams attorney for D.D. The attorney then filed a motion for a mistrial, 

arguing that since D.D. had not been represented at the prior hearing, a new trial was 

necessary. 

{¶6} At a hearing on the objection to the appointment of counsel before the 

trial court, the In re Williams attorney stated that D.D. had completely changed his 

mind about his desire to return to mother’s care, and that D.D. had remained 

consistent in that desire since changing his mind. HCJFS and the GAL argued that 

D.D. had only expressed a desire to go home so that he could protect his little 
OHIO FIRST DISTRICT COURT OF APPEALS 

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brother, and that D.D., who struggled intellectually and had mental-health issues, 

had not consistently expressed a desire to return to mother’s care. The trial 

court granted the objection to the magistrate’s decision and rejected the appointment 

of the In re Williams attorney. 

{¶7} We first consider mother’s argument that the trial court erred in 

allowing the In re Williams attorney to withdraw upon an oral motion. Mother 

contends that the attorney should not have been allowed to withdraw because he did 

not file a written motion in accordance with Loc.Juv.R. 12(D). Loc.Juv.R. 12(D) 

provides that an attorney seeking to withdraw as counsel shall file a written motion 

to withdraw. But it further provides that “[f]or good cause shown, the court may 

permit an oral motion to withdraw as counsel of record if no party is prejudiced 

thereby.” Loc.Juv.R. 12(D); In re A.J.O., 1st Dist. Hamilton No. C-180680, 2019-

Ohio-975, ¶ 28. The In re Williams attorney made the oral motion to withdraw after 

meeting with D.D. and informing the magistrate that D.D. was in favor of permanent 

custody and wanted to sever his relationship with mother. As no objections were 

raised to the motion to withdraw, and the record at that time contained no indication 

that D.D. wanted to return to mother’s care, we find that no party was prejudiced by 

independent counsel’s withdrawal from representation based on an oral motion, and 

that the trial court did not err in so allowing. 

{¶8} We next consider mother’s argument that the trial court erred by 

granting the objection filed by HCJFS and the GAL and terminating the magistrate’s 

appointment of the In re Williams attorney. 

{¶9} Mother first contends that because HCJFS and the GAL had requested 

that the same In re Williams attorney be reappointed, the invited-error doctrine 

barred them from objecting to that decision. We disagree. Neither HCJFS nor the 
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GAL requested that an In re Williams attorney be reappointed. But once the 

magistrate made the decision that such an attorney was needed, they requested that 

the same attorney be reappointed because D.D. had already established a 

relationship with that attorney. They then filed their joint objection within the 

permitted time frame. The invited-error doctrine has no application to this situation. 

See State v. Cephas, 1st Dist. Hamilton No. C-180105, 2019-Ohio-52, ¶ 24 (“Under 

the invited-error doctrine, a party cannot take advantage of an error that the party 

invited or induced the trial court to make.”). 

{¶10} In In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 

1110, syllabus, the Ohio Supreme Court held that “a child who is the subject of a 

juvenile court proceeding to terminate parental rights is a party to that proceeding 

and, therefore, is entitled to independent counsel in certain circumstances.” This 

court has explained that the “certain circumstances” referred to in In re Williams are 

instances in which the child’s custodial wishes conflict with those expressed by the 

GAL when the GAL is also serving as the child’s attorney. In re Walling, 1st Dist. 

Hamilton No. C-050646, 2006-Ohio-810, ¶ 24. When those circumstances arise, the 

trial court should conduct an in camera interview with the child, while giving due 

consideration to child’s maturity level, to determine whether independent counsel is 

needed. Id. 

{¶11} D.D. has extreme behavioral issues, suffers from mental-health issues, 

and is lower-functioning intellectually. The record indicates that the trial court was 

unable to conduct an in camera interview with D.D. because he was unstable and 

conducting the in camera would have been unsafe for all involved. 

{¶12} As to D.D.’s custodial wishes, the GAL at one point represented that 

D.D. had expressed interest in being placed with a relative, while consistently 
OHIO FIRST DISTRICT COURT OF APPEALS 

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maintaining throughout the case that D.D. did not want to return home. And the In 

re Williams attorney had withdrawn in the first instance because D.D.’s wishes 

aligned with the GAL’s. The social worker’s testimony did not establish that D.D. 

desired to return to mother’s care or that his wishes were in conflict with the GAL’s. 

She testified that D.D. had expressed a desire to protect his younger brother if he 

returned home. And she stated that, at some point in time, D.D. had expressed a 

desire to go home, but she gave no indication as to when he had so indicated. D.D. 

did express to his In re Williams attorney, upon that attorney’s second appointment, 

that he wanted to return home to mother. But the record clearly indicates that he 

had not consistently expressed that desire throughout the case. 

{¶13} On these facts, the trial court did not err in granting the objection filed 

by HCJFS and the GAL and in determining that independent counsel was not 

necessary. 

{¶14} Mother’s first and second assignments of error are overruled. 

Alleged Cumulative Error 

{¶15} In her third assignment of error, mother argues that cumulative errors 

prevented her and D.D. from receiving a fair trial. 

{¶16} Mother first argues that HCJFS’s complaint for permanent custody 

was defective. The complaint filed by HCJFS alleged that Nathaniel Lee was the 

father of D.D, although both Nathaniel Lee and “John Doe” were served with notice 

of the complaint by publication.1 After D.D. was adjudicated neglected and 

dependent, it was revealed that DNA test results established that Lee was not D.D.’s 

father. Mother did not identify any other potential fathers for D.D. The magistrate 

 

1 “John Doe” was not named in the complaint, but was served by publication. 
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gave HCJFS an opportunity to amend the complaint, but it declined to do so. Mother 

now argues that it was error not to have named John Doe in the complaint, and that 

D.D. was deprived of the opportunity to have his father come forward. We hold that 

because she has not demonstrated any prejudice to herself, mother does not have 

standing to raise this argument. 

{¶17} In In re A.M., 9th Dist. Summit No. 26141, 2012-Ohio-1024, the court 

considered an argument raised by the mother in a permanent-custody action that 

service had not been properly obtained on the alleged fathers of her child or on John 

Doe. It held that mother could only challenge an alleged service error on a nonappealing party where she demonstrated that she herself was prejudiced by the error. 

Id. at ¶ 13. Where mother offered no evidence that custody was likely to have been 

awarded to either of the alleged fathers or to John Doe, she lacked standing to 

challenge the service on those parties. Id. at ¶ 18-19. The court further held that 

mother’s argument that the failure to properly serve the alleged fathers affected her 

residual parenting rights did not establish standing because the argument was 

entirely speculative and failed to establish actual prejudice to mother. Id. at ¶ 21. 

{¶18} Although this case involves the failure to name the correct father in the 

complaint, rather than obtain service on the alleged father, we find the Ninth 

District’s reasoning persuasive. On the circumstances of this case, where John Doe 

was served with notice of the complaint despite not being named, and where mother 

has not identified any other potential fathers of D.D., we hold that mother has failed 

to establish any prejudice to herself and has no standing to challenge the complaint’s 

failure to name John Doe. 

{¶19} And even if mother had established standing, she waived her argument 

by failing to timely raise it below. Juv.R. 22(D) provides that defenses or objections 
OHIO FIRST DISTRICT COURT OF APPEALS 

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based on defects in the complaint or in the institution of the proceedings must be 

raised prior to the adjudicatory hearing. Juv.R. 22(D)(1) and (2); In re Dukes, 81 

Ohio App.3d 145, 150, 610 N.E.2d 513 (9th Dist.1991); In re K.A.D., 8th Dist. 

Cuyahoga No. 102228, 2015-Ohio-2408, ¶ 24. Mother did not raise any objection to 

the failure to name John Doe in the complaint until well after D.D. was adjudicated 

dependent and neglected, and consequently has waived the argument. 

{¶20} Mother next argues that it was error to deny her request for a 

continuance when she could not appear at the hearing scheduled for October 16, 

2018. We are not persuaded. The parties had appeared at an adjudicatory hearing 

before the magistrate on October 12, 2018. At the close of the hearing, D.D. was 

adjudicated neglected and dependent, and all parties acknowledged that the case 

would be continued until October 16. On the 16th, mother’s counsel appeared and 

requested a continuance, which the magistrate denied. Where mother had agreed to 

the date of the hearing just four days earlier, where the remaining parties were ready 

to proceed, and where counsel was present to represent mother’s interests, we find 

no abuse of discretion in the magistrate’s denial of mother’s requested continuance. 

See State v. Mauldin, 1st Dist. Hamilton No. C-030158, 2003-Ohio-6505, ¶ 6. 

{¶21} Under her cumulative-error argument, mother last alleges error in the 

trial court’s removal of D.D.’s In re Williams attorney. But we rejected this argument 

in our resolution of the first and second assignments of error. Having found no 

error, cumulative or otherwise, in the arguments raised by mother, we overrule her 

third assignment of error. 

{¶22} The judgment of the trial court is accordingly affirmed. 

Judgment affirmed. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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BERGERON and CROUSE, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.