## Facts

- In 2008, Butler County Children Services received a referral concerning four-year-old A.D. that was ruled unsubstantiated, but the investigation revealed concerns about A.D.’s mother, including domestic violence with her boyfriend, cocaine use, and a hospitalization after a self-inflicted stabbing during a suicide attempt.
- The agency filed a complaint alleging A.D. was not being properly cared for, and the juvenile court adjudicated A.D. a dependent child in May 2008.
- A.D. remained in agency custody and was placed out of the home, first with relatives and later with pre-adoptive caregivers who sought to adopt her.
- The pre-adoptive caregiver testified she would allow the mother contact with A.D. so long as substance abuse was not a problem.
- A CASA volunteer was appointed in July 2008.
- In September 2008, Adolf Olivas was appointed to serve both as A.D.’s guardian ad litem (GAL) and as A.D.’s attorney.
- By September 2010, the mother had not made sufficient progress on her case plan for reunification, and the agency sought permanent custody.
- During the permanent-custody hearings in January 2011, the mother argued that Olivas’s dual appointment created a conflict.
- The parties later agreed that the CASA volunteer would serve as GAL and Olivas would continue only as A.D.’s attorney.
- The mother asserted A.D. told her she wanted to live with the mother; Olivas and other witnesses reported that A.D. said she preferred living with the pre-adoptive caregivers and visiting/playing with the mother.
- At the close of the hearing, Olivas recommended permanent custody to the agency, stating A.D. had not expressed a desire to live with the mother.
- The mother moved to disqualify Olivas and appoint new counsel for A.D. based on alleged failure to represent A.D.’s wishes; the trial court denied the motion and granted the agency permanent custody.
- The mother appealed.

## Issues

1. Whether the juvenile court erred, or denied A.D. effective representation, by allowing Olivas to serve as both GAL and counsel and by refusing to disqualify him and appoint new counsel based on an alleged conflict regarding A.D.’s wishes.
2. Whether the juvenile court’s permanent-custody award to the agency was supported by clear and convincing evidence under Ohio’s permanent-custody standards.

## Decision

- The court of appeals affirmed the judgment granting Butler County Children Services permanent custody of A.D.
- The court rejected the mother’s claim that A.D. lacked effective representation and held the record did not show an actual conflict between A.D.’s expressed wishes and the position taken by A.D.’s attorney.
- The court upheld the denial of the motion to disqualify Olivas, noting that the evidence supported the conclusion that A.D. preferred her current placement while still wanting contact with the mother.
- The court affirmed the permanent-custody award, concluding the statutory requirements and best-interest determination were supported by clear and convincing evidence.

## Legal Principles

- A GAL advocates for a child’s best interests; a child’s attorney advocates for the child’s expressed wishes when the child is capable of directing representation.
- One person may be appointed as both GAL and attorney in a juvenile case, but if an actual conflict arises between the child’s expressed wishes and the GAL’s best-interest recommendation, separate appointments may be required.
- A claim of ineffective representation in this setting requires more than a speculative or theoretical conflict; the record must demonstrate a real divergence between the child’s stated objectives and counsel’s advocacy, and resulting prejudice.
- Permanent custody requires clear and convincing evidence of a statutory basis for permanent custody and that permanent custody serves the child’s best interest, evaluated through the statutory best-interest factors (including relationships, the child’s wishes as expressed directly or through the child’s representative, custodial history, and the child’s need for a legally secure placement).

## Conclusion

The Twelfth District affirmed permanent custody because the record supported the juvenile court’s findings that A.D. had remained in agency custody for an extended period, had stability in a pre-adoptive placement, and the mother had not progressed enough to safely reunify; it also found no reversible conflict or ineffective representation where A.D.’s attorney’s recommendation aligned with A.D.’s stated preference to remain in her placement while continuing contact with her mother.


In re A.D., 2011 WL 5822706 (2011)