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American Bar Association

ABA Section of Litigation
Children's Rights Litigation

Case Notes


In re Walling

2006 Ohio 810, 2006 WL 445981 (Ohio App. 1 Dist. 2006)

This termination of parental rights case involved a five (5) year old boy whose mother had alcohol and substance abuse and mental health issues. The record established that the mother and the child were bonded, that the mother worked “more often than not,” that the mother’s apartments were satisfactory, and that the mother did her best to care for the child. The mother’s failings were her failure to adhere to the lower court’s initial orders following adjudication of dependency. The mother’s case plan compliance was only partial. The child’s guardian ad litem filed a report supporting termination of the mother’s parental rights but failed to indicate the child’s wishes.

In this, the mother’s second appeal (she established in her first appeal that she was ineffectively represented by counsel), the court of appeals held that no clear and convincing evidence of harm to the child existed because the state failed to prove that the mother’s noncompliance with the initial orders equated to a lack of adequate parental care or created a condition or environment that necessitated the state to assume guardianship. The court cautioned that the focus is the child’s condition and not the parent’s fault.

The court also reversed termination of parental rights because the lower court failed to ensure that the child’s interests were properly represented.

First, the court restated Ohio law as requiring consideration of the child’s wishes before the entry of an order terminating parental rights. Because the guardian ad litem did not report the child’s wishes and because the lower court failed to conduct an in camera interview to determine the child’s wishes, reversal was required.

Second, the court of appeals applied In re Williams, 805 N.E.2d 1110 (Ohio 2004), which 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.” The court of appeals explained that “[t]he ‘certain circumstances’ to which the decision refers are instances where a child’s wishes are in conflict with his GAL’s recommendation where the GAL is also serving as the child’s attorney. If this occurs, the court should, at a minimum, conduct an in-camera, recorded interview with the child, giving due regard to the maturity of the child, in order to determine whether independent counsel is needed.”

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