Supreme Court of Ohio rejects appointment of adult guardian without competency hearing

Dan Trevas, Supreme Court of Ohio

A Cuyahoga County domestic relations court’s appointment of a guardian ad litem (GAL) to represent a woman in a divorce case — without giving her the right to challenge the appointment — violated the woman’s constitutional rights, the Ohio Supreme Court ruled recently.

A Supreme Court majority vacated the appointment of a GAL for Carol Thomasson, which was made without the consent of Carol or her husband. The judge also ordered the Thomassons to each deposit $1,000 with the clerk of courts for the payment of the GAL’s fees.

Writing for the Court majority, Justice Patrick F. Fischer explained the Court first had to decide if Carol Thomasson could appeal the decision of the GAL appointment before the divorce proceedings concluded, and then determine if the process the domestic relations court undertook to make the appointment was valid.

Justice Fischer noted that the Thomasson appeal was a “unique case” that allowed for an appeal because a GAL can only be appointed for an adult if the adult has been ruled incompetent, and no proceedings were conducted to test Thomasson’s competency.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Judith L. French joined Justice Fischer’s opinion. Also joining was Sixth District Court of Appeals Judge Mark L. Pietrykowski, sitting for former Justice William M. O’Neill, who resigned.

Chief Justice O’Connor also wrote a concurring opinion which questioned the dissent of Justice R. Patrick DeWine. In his dissenting opinion, Justice DeWine wrote that the Court needs to be cautious in accepting appeals from the lower courts on “piecemeal” issues and that Thomasson’s objections to the appointment could be appealed once the divorce proceedings concluded.

Justice Sharon L. Kennedy concurred with the majority in judgment only with an opinion, finding that the Court did not need to determine if Thomasson’s constitutional rights were violated because the domestic relations court order violated Thomasson’s substantial state law right under R.C. 3109.01. The law requires all adults 18 years and older who are not under a “legal disability” to be treated as responsible adults, and the court’s appointment of the GAL without a finding of legal disability prejudiced Thomasson’s legal autonomy guaranteed by the law.

Divorcing Couple Object to Appointment

Thomasson’s husband, Carl, filed for divorce in early 2015. In mid-2016, the domestic relations court appointed a GAL for Thomasson without either side asking for the appointment. The judge cited Ohio Civil Rule of Procedure Civ.R. 75(B)(2) as the rule allowing for the appointment.

Thomasson appealed the ruling to the Eighth District Court of Appeals, arguing that Civ.R. 75(B)(2) does not give a trial court the authority to appoint a GAL for an adult, and if authority existed under the rule, a GAL appointment could be made after a hearing and a finding that the adult is incompetent. She argued there was no such hearing or finding. Her husband filed a one-page brief joining her brief in opposition of the appointment.

The Eighth District dismissed the appeal, concluding that a GAL appointment for an adult was not a final, appealable order under R.C. 2505.02(B) and the court did not have the jurisdiction to hear Thomasson’s case until further proceedings at the trial court took place. Thomasson appealed the Eighth District’s decision to the Ohio Supreme Court, which agreed to hear the case.

Court Examines Appointment Rules

Justice Fischer explained that Ohio appeals courts have ruled that orders citing Civ.R. 75(B)(2) as the authority are not final, appealable orders. But Civ.R. 75(B)(2) does not apply to adults, he wrote, but rather permits a trial judge presiding over a divorce case to include a child of a divorcing party as a defendant in a divorce case and appoint a GAL “for the child.” The Supreme Court majority found the rule does not apply in this case and none of the case law related to Civ.R. 75(B)(2) applies.

The majority found neither the trial nor appeals court cited any rule that permits a GAL appointment for a competent adult, but it noted that another rule — Civ.R. 17(B) — allows for a GAL for a minor or “incompetent person.” Because Thomasson was not a minor, the only “reasonable interpretation” of the trial court’s order was that it determined she was incompetent and required an “appropriate representative,” the Court stated.

The majority posed a question: At the point when a GAL was appointed against Thomasson’s will, did she have the right to place the divorce proceedings on hold while she appealed the domestic relations court’s decision? The Court majority noted the Ohio Constitution only allows courts of appeals to review final, appealable orders.

Law Determines if Order Appealable

R.C. 2505.02(B) provides for several types of appealable orders and requires orders being appealed to affect “the substantial right made in a special proceeding.” The Court noted that in its 1993 Bell v. Mt. Sinai Med. Ctr. decision it determined that an order “affects the substantial right” of a person only if in the absence of an immediate review would the person be “denied effective relief in the future.”

The Court found that Thomasson had a substantial right that was affected. Also, she would not be able to effectively protect her rights if the GAL appointment were maintained. The opinion noted that the record does not reflect that the parties were notified that the judge was considering appointing a GAL or that Thomasson was given any opportunity to be heard by the court prior to the appointment.

The Supreme Court stated that no Ohio courts have previously addressed the question of whether an order appointing a GAL for an adult — without a hearing on the matter or any notice to the adult — violates the adult’s due process rights. However, several other states, including California, Illinois, and Washington, have found in those cases that a hearing was required.

“We agree with the determinations and reasoning of these several courts. When a GAL is appointed by a court to represent an adult, that adult loses some autonomy in directing the litigation,” the opinion stated.

The Court ruled that since the trial court treated Thomasson as though she had been adjudicated incompetent and appointed a GAL without conducting a hearing, providing her notice, or giving her an opportunity to be heard, the court violated her due process rights, which is a “substantial right,” under R.C. 2505.02(A)(1).

Court Finds Immediate Review Necessary

Citing the Bell decision, the Court noted that in order to appeal the appointment, not only did the decision have to affect a substantial right, Thomasson also had to show that her interests would be harmed if she were denied a review of the decision.

The Court found that the GAL would impact Thomasson’s autonomy, which could impact negotiations and agreements usually made during divorce proceedings. It noted that negotiations often involve the careful and selective exchange of information. If the GAL exchanged and revealed information that Thomasson did not wish to reveal, that information could not be “clawed back,” and her interests would be harmed. There are also financial interests at play in divorce proceedings, and if the GAL makes financial decisions that Thomasson does not agree to, those decisions would be difficult to protect by a future appeal, the Court concluded.

The Court noted that while the harm Thomasson faces by having to wait for an appeal are “potential rather than certain injuries,” the Court has ruled since Bell that potential injuries qualify to meet the standard for allowing the ruling to be appealed. The majority also noted there would be a minimal expenditure of resources by the Eighth District to review the unique facts of Thomasson’s case.

“In this unique case, the order appointing a GAL to represent Carol is a final, appealable order,” the Court stated.

Because the order is appealable, the Court addressed the merits of Thomasson’s claim. It found the domestic relations court did not have the authority to appoint a GAL without following the notice and hearing process. It vacated the domestic relations court’s order and remanded the case to that court for further proceedings.

Justice Finds Another Law Stopped GAL Appointment

In her concurrence, Justice Kennedy wrote that the Ohio Supreme Court has previously stated it would only consider constitutional issues when absolutely necessary, and in this case there was no need to address Thomasson’s due process claims.

Justice Kennedy began by examining the language of R.C. 2505.02(B)(2) — “affects a substantial right” — to determine whether the order appointing a GAL was a final appealable order. She rejected reliance on Bell as the Bell Court failed to consider the plain and ordinary meaning of “affects.”

Citing two dictionaries, Justice Kennedy noted that “affect” in R.C. 2505.02(B)(2) means an action “materially or detrimentally influences a substantial right.” She then noted that R.C. 3109.01 provides those over 18 years old and not under a legal disability have the right to make decisions affecting their personal affairs. This legal right to adult status is enforced and protected by law and creates a “substantial right,” she added.

“In appointing the guardian ad litem for Carol without a finding of legal disability, the trial court stripped Carol of her ability to direct her legal affairs according to her wishes, a right guaranteed by R.C. 3109.01,” Justice Kennedy wrote. “Further, the trial court’s order detrimentally influenced this substantial right.”

The concurrence concluded that it is “beyond question” that Thomasson’s autonomy is impacted by the order and that requiring her to wait until there is final judgment in the divorce would prejudice her case.

Dissent Finds Court Can Not Consider Case

In his dissent, Justice DeWine wrote that he understands the majority is “eager to decide this case,” but that the Court should not “succumb to the temptation to expand” its authority to hear cases before final judgments are issued in lower courts.

He wrote the critical question in determining whether a substantial right is affected is whether an immediate appeal is necessary because appropriate relief would be prevented in the future. Justice DeWine noted that only in the most limited circumstances has the Court found an immediate appeal was necessary to protect a substantial right.

The dissent stated that Thomasson’s argument did not explain how she would be denied effective relief if her appeal had to wait until after the domestic relations court issued final judgment. Justice DeWine noted further that the majority does not “present a compelling explanation” of why any harm Thomasson suffered could not be corrected after appealing the trial court’s final judgment.

Justice DeWine stated that today’s decision could also result in the use of additional judicial resources. It is possible the trial court could, on remand, hold the hearing, appoint the GAL, and likely start another round of appeals in the case.

He urged the Court not to ignore the constraints on its authority to provide immediate review of the domestic relations court’s order.

“The paths are tempting: gloss over the Constitution’s final-order requirement so we can immediately fix what happened below. But to bite that apple does more damage than good,” the dissent stated.

2016-1629. Thomasson v. Thomasson, Slip Opinion No. 2018-Ohio-2417.

The opinion can be found online at: http://www.courtnewsohio.gov/cases/2018/SCO/0627/161629.asp#.WzOx5yAnaUk

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Date Published: July 23, 2018

Supreme Court of Ohio