Tuesday, Nov. 21, 2017
Charles W. Thomasson v. Carol J. Thomasson, Case no. 2016-1629
Eighth District Court of Appeals (Cuyahoga County)
In the Matter of the Adoption of M.G.B.-E. et al., Case no. 2017-0039
Twelfth District Court of Appeals (Clinton County)
Disciplinary Counsel v. Paul A. Mancino Jr., Case no. 2017-1079
Cuyahoga County
Does Court Need to Find Adult Incompetent and Hold Hearing Before Appointing Guardian ad Litem?
Charles W. Thomasson v. Carol J. Thomasson, Case no. 2016-1629
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Before appointing a guardian ad litem to act on behalf of an adult, must a trial court make a finding of incompetency and conduct an evidentiary hearing concerning the adult’s competency?
- Did a trial court violate due process rights when it appointed a guardian ad litem for an adult without notice or a hearing?
- Is the appointment of a guardian ad litem for an adult in a divorce proceeding a final and appealable order?
- Is a trial court permitted to appoint a guardian ad litem for an adult in a divorce proceeding based on Ohio Rule of Civil Procedure 75(B)(2)?
BACKGROUND:
Carol J. Thomasson and Charles W. Thomasson separated in 2013 after more than 30 years of marriage. In January 2015, Mr. Thomasson filed for divorce in Cuyahoga County Common Pleas Court.
Two days before the divorce proceeding was scheduled to begin on June 8, 2016, the trial court issued an entry ordering the appointment of a guardian ad litem for Ms. Thomasson. The order stated, “Upon the Court’s own motion and pursuant to Civil Rule 75(B)(2), IT IS ORDERED, ADJUDGED AND DECREED that Attorney Jacob A.H. Kronenberg is hereby appointed to act as Guardian ad Litem on behalf of Defendant, Carol J. Thomasson …. This appointment shall remain in effect until he is discharged by the Court or by the Court filing a final order in the case.”
Ms. Thomasson appealed the order to the Eighth District Court of Appeals. The trial court’s appointment was stayed during the appeal. Mr. Thomasson filed a brief in the case, agreeing that a guardian ad litem shouldn’t have been appointed in the divorce matter. In September 2016, the Eighth District instead dismissed Ms. Thomasson’s appeal, concluding that the appellate court couldn’t consider the case because the trial court’s decision appointing the guardian ad litem wasn’t a final, appealable order.
Ms. Thomasson filed an appeal with the Ohio Supreme Court, which agreed to review the issues. Kronenberg, the guardian ad litem, asked the Court to intervene on Ms. Thomasson’s behalf in the appeal, but the Court denied the request. Mr. Thomasson didn’t file a brief in the case, so he won’t be permitted to participate in oral argument.
No Incompetency Finding Made, Wife Asserts
Adults are presumed to be competent under Ohio law, and a court may appoint a guardian ad litem for an adult only if the adult is found to be incompetent, Ms. Thomasson maintains. The trial court’s order cites Civ.R. 75(B)(2), which applies to divorce, annulment, and separation actions and speaks to the interests of children in such matters, she notes, adding that she is in her 60s. For adults in a civil case, she argues that courts may appoint a guardian ad litem based only on Civ.R. 17(B) and R.C. 2307.15.
Civ.R. 17(B) allows a court to appoint a guardian ad litem when “a minor or incompetent person is not otherwise represented.” Ms. Thomasson states that she has never been determined by the court to be incompetent and she had an attorney for the divorce proceedings.
She notes that a Tenth District Court of Appeals decision in 2000 used the definition of “incompetent” found in state laws governing conservators and guardians in a ruling about appointing a guardian ad litem for an adult in a civil action. “Incompetent” was defined as any person who is so mentally impaired, as a result of a mental or physical illness or disability, that the person is incapable of taking proper care of the person’s self or property, Ms. Thomasson states. She adds that the Ohio Supreme Court has ruled a defendant in a criminal case is incompetent if the defendant can’t understand the nature and objective of the criminal proceedings or is unable to assist in the defense, but incompetency isn’t mere mental or emotional instability. The trial court in her case, however, cited no evidence in the record and provided no explanation to support a belief that she is incompetent, Ms. Thomasson argues.
Notice and Hearing Essential, Wife Argues
R.C. 2307.15 states, “When the insanity of a party is not manifest to the court, and the fact of insanity is disputed by a party or an attorney in the action, the court may try the question, or impanel a jury to try it.”
Ms. Thomasson stresses that no one, including Mr. Thomasson and the attorneys, questioned her mental capacity in the divorce proceedings. She contends that she had the right to be notified by the trial court of this issue and the right to a hearing to present evidence and testimony to counter any claims regarding her competency. By denying her this opportunity, the trial court violated her right to due process, she contends.
She points to cases from Illinois, Vermont, and Washington to support her argument. Because guardians ad litem substitute their judgment for that of the persons they represent, a competent adult wrongly appointed to the care of a guardian ad litem would lose the right to make decisions and exercise judgment in matters directly affecting them. Given this concern, the high courts in Illinois, Vermont, and Washington determined that a court must make a finding of incompetency before appointing a guardian ad litem for an adult, the adult must be notified and given a chance to be heard on the issue before the appointment, and the failure of a trial court to take these steps is a due process violation.
Order Could Be Appealed, Wife Maintains
Ms. Thomasson also disputes the Eighth District’s ruling that the trial court’s order appointing the guardian wasn’t a final and appealable order. Based on state law defining final orders in R.C. 2505.02, Ms. Thomasson maintains that the trial court’s order “affect[ed] a substantial right made in a special proceeding.” Courts have determined that divorce proceedings qualify as a type of special proceeding, which is a final, appealable order under the statute, she contends. Because her substantial rights were affected in a special proceeding, she argues she was permitted to appeal the trial court’s order appointing the guardian ad litem.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Carol J. Thomasson: Joseph Stafford, 216.241.1074
Representing Charles W. Thomasson: Anne Magyaros, 440.247.4766
Can Adoption Proceed When Father Asks Domestic Court for Parenting Time?
In the Matter of the Adoption of M.G.B.-E. et al., Case no. 2017-0039
Twelfth District Court of Appeals (Clinton County)
ISSUE: If a pending parenting matter is proceeding in a domestic relations court, must a probate court suspend its consideration of an adoption petition involving the same children until the domestic relations matter is resolved?
BACKGROUND:
D.H. and V.B.-E. were married in 1999 and divorced in 2004. They had two children. The terms of their divorce gave the mother, V.B.-E., custody of the two children and the father, D.H., was granted standard parenting time. The divorce was contentious and the mother began to prevent parenting time, accusing D.H. of sexually abusing his son. D.H. responding by filing several contempt motions against his ex-wife in the Montgomery County Domestic Relations Court where they were divorced.
After the divorce, V.B.-E. moved to Hillsboro, and Highland County Children’s Services began investigating her claims against D.H. The father sought custody of the children in Montgomery County and the mother, through the Highland County Probate Court, was able to change the last names of the children without D.H. being notified.
A Montgomery County court hearing was conducted in early 2007. In September 2007, a magistrate found the sexual abuse allegations were unsubstantiated. The magistrate ordered the mother to comply with the visitation schedule and ordered family counseling to help the children phase back into regular visits with their father after the long absence. D.H. was required to hire and pay for the counselors. But at an April 2008 status hearing on the progress of case, D.H. indicated he hadn’t been able to hire any of the agreed-upon counselors. By September 2008, D.H. still hadn’t hired a counselor, and his case was dismissed. He didn’t regain visitation with his children.
Mother Moves Three Times
V.B.-E. moved to Cincinnati in 2010 and moved again in 2011, and 2013, eventually locating in Wilmington in Clinton County where she remarried. D.H. remarried and had children with his new wife. In August 2014, a babysitter hired by D.H. told him she believed she had spotted his son, R.B.-E., at a football game in Wilmington. D.H. and his wife began searching the Wilmington area and located his ex-wife. D.H. attended a track meet where his son was running, and V.B.-E. spotted her ex-husband and called the police. V.B.-E.’s new husband, allegedly attempted to keep the son from speaking directly with D.H.
In 2015, D.H. filed a motion in Montgomery County to re-establish parenting time with the children. Four days later, the stepfather of the two children, filed a petition for adoption in Clinton County Probate Court. The stepfather sought to adopt the children without D.H.’s consent, citing that under R.C. 3107.07(A), consent is not required when a parent, without justifiable cause, fails to maintain more than minimal contact with a child for more than a year. The probate court found D.H. attended a few sporting events where his son participated, but he didn’t speak with the child, and he never tried to communicate with his daughter since losing his visitation. After a two-day hearing that included several family members from both sides, the probate court ruled D.H.’s consent wasn’t needed and granted the adoption.
D.H. appealed the adoption to the Twelfth District Court of Appeals, arguing that once proceedings in the domestic relations started on the parenting-time request, the probate court was required to refrain from considering the adoption until the domestic court action was resolved. The Twelfth District affirmed the probate court’s ruling, and D.H. appealed to the Supreme Court, which agreed to hear the case.
Any ‘Parenting’ Action Should Stop Adoption Proceeding, Father Asserts
The father argues that his parenting issue must be resolved before the adoption can be considered, based on the Ohio Supreme Court’s 2006 decision in In re Adoption of Pushcar. The father points to a subsequent Supreme Court decision that supports his position, but notes the Court seemingly changed its position without explanation and now would allow the adoption process go forward. He asks the Court to reaffirm that an adoption can’t go forward if a “parenting” action is pending, and not restricted to issues of “parentage.” Issues of parentage are questions of paternity, he notes.
The Pushcar decision stated that no adoption could proceed if there was a “parenting” proceeding in juvenile court. D.H. notes the Court’s 2010 In re Adoption of P.A.C. found a probate court lacks jurisdiction to proceed with a stepfather’s adoption petition because the natural father had a paternity action pending in juvenile court to prove he was the father. D.H. asserts P.A.C. was based on Pushcar and that, while it involved a paternity claim, the Court wrote that it applied to any parenting issue.
However, in 2011, the Court reversed course without discussion, D.H. claims. In a footnote to the In re G.T.B. decision, the Supreme Court concluded that when in Pushcar it used “parenting” it actually meant the similar sounding but more limited issue of “parentage.” D.H. notes the Court relied on G.T.B. in a 2016 case, again restating that it meant parentage in Pushcar and that the probate court can proceed even if there are pending issues between the father and mother that involve something other than paternity.
D.H. advocates for the Court to return to its previous holdings that referred to parenting. He also noted at that while Pushcar, P.A.C., and other cases he cited in his brief relate to actions in juvenile court, those same protections should be afforded to actions pending in domestic relations court.
Jurisdictional Priority Should Apply, Father Maintains
The father also maintains that the “jurisdictional priority” rule should apply in this case because the Montgomery County domestic relations court took jurisdiction of the matter before the Clinton County probate court acted. The priority rule applies when the claim is the same in both courts or the controversies “present part of the same” issue, D.H. explains. While the case doesn’t involve adoption in both counties, both involve D.H.’s general right to visitation and contact with his children. Since both issues are the same, the probate court didn’t have jurisdiction to grant the adoption, he maintains.
Only Paternity Matters Stop Adoption Proceedings, Stepfather Argues
The stepfather counters that the decisions D.H. relies on don’t apply for two reasons. First, he notes, the Pushcar decision and others that followed related to matters proceeding in juvenile court, not in domestic relations court. He argues there is no reason to expand the rule to cover domestic relations courts. Second, he maintains the Court has logically restricted the Pushcar decision to apply to matters of “parentage.”
The reason for blocking an adoption case from proceeding with a pending matter is that the probate court can’t determine if it needs the consent of the parent seeking paternity, the stepfather argues. If paternity has not yet been established, the stepfather asserts the clock can’t start on the requirement that the parent hasn’t had contact for a year without justifiable cause. It is only once paternity is established that a probate court can assess if the father has been in contact with his child, so the probate court must wait to proceed until the paternity issue is resolved, the stepfather’s brief explains.
The stepfather argues that isn’t the case here. D.H. always has been established as the father of the children, and D.H.’s case in Montgomery County doesn’t impact the determination of whether D.H.’s consent was required. The stepfather notes the Court’s 1958 In re Adoption of Biddle recognized that divorcing parents would have ongoing disputes in domestic relations court, while adoption proceedings were pending, and that the probate court retains the right to proceed.
The stepfather further argues that no order from the domestic relations court prevented D.H. from having contact with his children, including trying to call, email, contact them through social media or by mail. The probate court noted the father “dropped the ball,” and “did not provide or pay for or pursue counseling for the family to reinstate visitation of the minor children,” which showed that D.H. had the power to contact the children but didn’t. The stepfather concludes the probate court was correct to find D.H. had no justifiable cause to not have minimal contact with the children and to approve the adoption.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the father, D.H.: Jon Rion, 937.223.9133
Attorney Discipline
Disciplinary Counsel v. Paul A. Mancino Jr., Case no. 2017-1079
Cuyahoga County
The Board of Professional Conduct, which considers complaints against lawyers and judges in Ohio, recommends that Cleveland attorney Paul A. Mancino Jr. receive a public reprimand based on his representation of a criminal defendant in an appeal.
Family Friend Says Defendant Wants to Appeal
In March 2014, Mancino filed a notice of appeal on behalf of Raymond F. Miller, who had pled guilty in a Geauga County criminal case late in 2013. Robert Jirousek, the father of one of the attorney’s clients, knew Miller’s parents and told Mancino that Miller wanted to appeal his conviction. Jirousek agreed to pay the costs.
Mancino filed a brief in the Miller appeal with the Eleventh District Court of Appeals, but he didn’t send a copy of his brief to Miller. Oral argument was held, and the Eleventh District upheld Miller’s conviction and sentence in December 2014. Mancino said he sent the ruling to Miller, who later testified that he received this material.
Mancino formally asked the Eleventh District to reconsider the decision, and the state filed a response with an affidavit from Miller that stated he never requested or authorized anyone to file an appeal in his case and he hadn’t spoken with or received correspondence from Mancino. The trial judge in the criminal case filed the grievance with the Office of Disciplinary Counsel, which investigated the matter.
Mancino acknowledged during the disciplinary process that he never met, spoke with, or received communication from Miller. The attorney also admitted he never contacted Miller or Miller’s parents to find out if the defendant wanted to appeal the case or hire Mancino as his lawyer. Jirousek stated that he hadn’t communicated directly with Miller, either.
Consultation with Client Is Required
The professional conduct board concluded that Mancino violated rules requiring lawyers to consult with clients to decide legal strategy, such as whether to sue or to settle; to promptly inform clients about the case status; and to obtain client consent on case issues and abide by those decisions. The board also found that Mancino violated a rule barring attorneys from taking compensation for representation from someone other than the client unless the client authorizes that payment.
Among the mitigating factors identified, the board’s report to the Supreme Court notes that Mancino had no dishonest or selfish motive, caused no harm to the client, and has practiced for 54 years without any disciplinary action. The board found no aggravating circumstances and recommended that the Court publicly reprimand Mancino.
No Attorney-Client Relationship Was Formed, Lawyer Argues
Mancino objects to the board’s findings and recommended sanction. He contends that there can be no violations of the Rules of Professional Conduct if he had no attorney-client relationship with Miller. Mancino argues that the Supreme Court dismissed disciplinary charges against an attorney in Disciplinary Counsel v. Mamich (2010) because the Court found there was no attorney-client relationship. In that case, the attorney was hired by a father who had opened a credit card in his daughter’s name without her knowledge and received notice about a lawsuit against his daughter for nonpayment of the debt. Mancino states that the Court decided the daughter wasn’t the lawyer’s client because she was never told about the lawsuit and had no reason to think the lawyer was representing her.
In Mancino’s view, his case is identical to Mamich. He points out that the board’s report states that Miller signed an affidavit that Mancino wasn’t his attorney and that he didn’t ask anyone to appeal his case. If Miller wasn’t a client, then Mancino argues he had no duty to communicate with Miller or update him about the case. The violations of attorney conduct rules found by the board in this case should be dismissed and no sanction should be imposed, Mancino concludes.
Attorney Represented Man in Appeal, Disciplinary Counsel Maintains
The disciplinary counsel counters that throughout the disciplinary process Mancino argued that Miller knew and authorized the attorney’s representation, yet now he states he had no attorney-client relationship with Miller. The disciplinary counsel points out that Mancino filed a brief on Miller’s behalf in the appeal, and he identified himself as Miller’s attorney during oral argument before the Eleventh District.
The disciplinary counsel also argues that the attorney in Mamich was aware that the father hadn’t told his daughter he had opened the credit card in her name or informed her about the civil lawsuit. Mancino, however, believed that Miller wanted to appeal his conviction based on information from Jirousek, so Mancino thought he was representing Miller, the disciplinary counsel maintains. As Miller’s attorney, Mancino was obligated to contact and inform his client about the case and to obtain Miller’s consent to allow Jirousek to pay the legal fees, the disciplinary counsel states.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Paul A. Mancino Jr.: Brett Mancino, 216.621.1742
Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256
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