In re A.D.

In 2008 Butler County Children Services (the agency) (plaintiff) received a referral regarding four-year old A.D. that was ruled unsubstantiated. However, while investigating the referral, the agency learned that A.D.’s mother (the mother) (defendant) was in a domestic-violence situation with her boyfriend, was taking cocaine, and was hospitalized after she stabbed herself in an effort to take her own life. The agency filed a complaint asserting that A.D. was not being properly cared for, and a court adjudicated A.D. dependent in May 2008. Over the next 13 months, A.D. was in foster care, placed first with relatives and ultimately with foster parents who sought to adopt her. The foster mother testified that she would permit the mother to see A.D. as long as substance abuse was not a problem. In September 2008, Adolf Olivas was appointed to serve as A.D.’s guardian ad litem (GAL) and as her legal counsel. Prior to this, in July 2008, a court-appointed special advocate (CASA) was appointed. By September 2010, the mother had not made sufficient progress to be reunited with A.D. At the final custody hearings, in January 2011, the court granted the agency permanent custody of A.D. The mother appealed, arguing that A.D. had ineffective representation and that the court erred in not disqualifying Olivas and appointing new counsel. The mother based this argument on the fact that Olivas had served as both A.D.’s GAL and as A.D.’s attorney. GALs represent the best interests of a child. However, attorneys represent a child’s wishes. The mother argued that Olivas had not represented A.D.’s wishes, because A.D. had told the mother that A.D. wanted to come live with her. On the contrary, A.D. had told Olivas and other witnesses that she preferred living with her foster parents and playing with the mother. On the first day of the permanent-custody hearings, the mother’s counsel argued that having Olivas serving in both roles was an inherent conflict. On the second day, the parties agreed that the CASA would serve as the GAL and Olivas would continue as legal counsel. At the end of the hearing, Olivas recommended that custody of A.D. be granted to the agency because A.D. had never expressed a desire to live with the mother. The mother filed a motion to have Olivas disqualified on the ground that Olivas failed to represent A.D.’s wishes. The motion was overruled. The trial court granted custody to the agency. The mother appealed.