In re K.B., 170 Ohio App. 3d 121

James J. Sweeney, Presiding Judge. {¶ 1} Appellant, K.B., appeals from the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, that found her delinquent for trespassing into her mother’s bedroom and using her mother’s phone without her mother’s permission. For the following reasons, we reverse and remand for further proceedings. {¶ 2} On June 17, 2004, two complaints were filed against K.B., a 13-year-old girl. The first complaint alleged that K.B. knowingly used or operated a telephone without the consent of the owner, in violation of R.C. 2913.04(A), a misdemeanor of the first degree.

The second complaint alleged that K.B. committed burglary by trespassing in an occupied structure or separate occupied portion of an occupied structure with the purpose of committing a criminal offense, in violation of R.C. 2911.12(A)(3), a felony of the third degree. The basis for both of these complaints was K.B.’s use of her mother’s telephone without permission. {¶ 3} On August 3 and 4, 2004, K.B. appeared with her mother before the magistrate, waived counsel, admitted to the allegations of the complaints, and was adjudicated delinquent. There is no transcript of these hearings.

However, the juvenile court did not appoint K.B. a guardian ad litem (“GAL”). {¶ 4} On September 2, 2004, the dispositional hearing took place, and K.B. was placed on probation for her conduct.

The terms of her probation included a minimum of one hour of homework each evening, ongoing counseling, curfew, and after-school and weekend structured activity. {¶ 5} On March 7, 2005, a complaint was filed against K.B., alleging that she had violated the terms of her probation. {¶ 6} On April 7, 2005, K.B. appeared with her mother and legal counsel, admitted to the allegations of the complaint, and was adjudicated delinquent. Probation was continued and psychological and psychiatric evaluations were ordered.

Again, the Juvenile Court did not appoint K.B. a GAL. {¶ 7} On May 4, 2005, K.B., her mother, and legal counsel appeared for a review hearing. Probation was continued and in-home treatment was ordered. {¶ 8} On August 15, 2005, K.B. appeared with her grandmother (her legal guardian) and case manager, waived counsel, admitted to the complaint, and was adjudicated delinquent. The juvenile court committed K.B. to the custody of Ohio Department of Youth Services (“ODYS”) for six months.

Again, the juvenile court failed to appoint K.B. a GAL. {¶ 9} From this judgment, K.B. timely appeals and sets forth the following two assignments of order, which shall be addressed out of order. {¶ 10} “II. The trial court committed reversible error when it failed to appoint a guardian ad litem for appellant as mandated by Juvenile Rule 4(

B) and Ohio Revised Code 2151.281(A).” {¶ 11} In her second assignment of error, K.B. argues that the juvenile court erred by failing to appoint a guardian ad litem pursuant to R.C. 2151.281(A)(2) and Juv.R. 4(B). Specifically, K.B. maintains that a conflict existed between herself and her mother and grandmother and that the juvenile court was required to appoint a GAL to protect her best interests. {¶ 12} Initially, we note that K.B. failed to object to the absence of a GAL.

However, the absence of an objection does not preclude a reversal due to the juvenile court’s failure to appoint a GAL when required under R.C. 2151.281(A)(2) or Juv.R. 4(B)(2). In re Etter (1998), 134 Ohio App.3d 484, 492, 731 N.E.2d 694. {¶ 13} R.C. 2151.281(

A) and Juv.R. 4(

B) require that a juvenile court appoint a guardian ad litem in certain circumstances. R.C. 2151.281(

A) provides: {¶ 14} “The court shall appoint a guardian ad litem to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when either of the following applies: {¶ 15} “

(1) The child has no parent, guardian, or legal custodian. {¶ 16} “

(2) The court finds that there is a conflict between the child and the child’s parent, guardian, or legal custodian.” {¶ 17} Likewise Juv.R. 4(

B) states: {¶ 18} “The court shall appoint a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile court proceeding when: {¶ 19} “ * * * {¶20} “

(2) The interests of the child and the interests of the parent may conflict.” {¶ 21} The plain and unambiguous language of Juv.R. 4(B)(2) mandates that the possibility that interests “may conflict” is sufficient for the required appointment of a GAL. (Emphasis added.) See In re Sappington (1997), 123 Ohio App.3d 448, 453, 704 N.E.2d 339; In re Slider, 160 Ohio App.3d 159, 2005-Ohio-1457, 826 N.E.2d 356; In re Howell (1991), 77 Ohio App.3d 80, 92, 601 N.E.2d 92; In re Smith, Union App. No. 14-05-33, 2006-Ohio-2788, 2006 WL 1519688; In re Cook, Ashtabula App. No. 2003-A-0132, 2005-Ohio-5288, 2005 WL 2416615.

However, the juvenile court is in the best position to weigh the relevant facts in determining whether a potential conflict of interest exists between the parent and child. Sappington, supra, at 453-454, 704 N.E.2d 339. {¶ 22} In the context of a delinquency proceeding, a parent’s speaking out against the child’s penal interest raises a colorable claim of conflict. In re Howard (1997), 119 Ohio App.3d 201, 207, 695 N.E.2d 1. That colorable claim of conflict requires a “thorough inquiry” by the juvenile court to determine whether a conflict of interest exists such that the court must appoint a guardian ad litem.

Id. A court’s failure to appoint a guardian ad litem when these mandatory provisions require such an appointment constitutes reversible error. In re Spradlin (2000), 140 Ohio App.3d 402, 406, 747 N.E.2d 877. {¶ 23} We review the juvenile court’s decision to appoint a GAL under an abuse-of-discretion standard. Id. at 407, 747 N.E.2d 877. The relevant question on appeal is whether the record reveals an actual or potential conflict of interest which required the appointment of a GAL.

Id. {¶ 24} Here, K.B., the juvenile defendant, was accused of entering her mother’s locked bedroom and using her phone without permission. Although there is no transcript of the arraignment and dispositional hearings on August 3, August 4, and September 2, 2004, it is quite clear from the record that there was tension between the mother and K.B. Indeed, approximately one year after these hearings, K.B. was placed in the legal custody of her grandmother.

Although KB.’s mother may have taken appropriate and reasonable actions, her conduct should have established to the juvenile court that there was a likely potential for a conflict, and that court should have appointed a GAL for K.B. or, at least, inquired into the need for one. “The danger where the parent has sought the aid of the court against the child is that the interests of the parent may no longer be consistent with a role that properly protects the child’s rights.

The parent may have an interest, wholly apart from the child’s best interest, in committing the child to another’s authority.” Sappington, supra, 123 Ohio App.3d at 454, 704 N.E.2d 339. {¶ 25} With regard to the August 15, 2005 hearing, the record establishes that the grandmother’s testimony was adverse to KB.’s penal interests in that she established that K.B. had behavioral issues that needed to be corrected and urged the court to commit K.B. to ODYS. Clearly, the grandmother’s testimony demonstrated at least the strong possibility of a conflict of interest.

Although we acknowledge that trial courts are usually in a better position to weigh the facts and determine whether a conflict of interest exists between a legal guardian and child, we believe, in light of the grandmother’s statements against K.B.’s penal interest, that the record reveals a strong enough possibility of a conflict of interest to demonstrate that the trial court abused its discretion by failing to appoint a GAL or to make further inquiry into whether a GAL was necessary.

Spradlin, supra, 140 Ohio App.3d at 407, 747 N.E.2d 877; Slider, supra, 160 Ohio App.3d at 164, 826 N.E.2d 356. {¶ 26} Accordingly, we sustain KB.’s second assignment of error, reverse the trial court’s judgment, and remand this cause for further proceedings consistent with this decision. {¶ 27} “I. The trial court committed reversible error by failing to comply with the mandates of Juvenile Rule 37 when it failed to supply a complete record of appellant’s proceedings.” {¶ 28} Our resolution of KB.’s second assignment of error renders her remaining assignment of error moot. Accordingly, we do not address it here.

See App.R. 12(A)(1)(c). Judgment reversed and cause remanded. Dyke, J., concurs. McMonagle, J., concurs in judgment only with separate concurring opinion. . The parties are referred to herein by their initials or title in accordance with this court’s established policy regarding nondisclosure of identities of juveniles.