What’s on Their Minds: Does A Minor have a Constitutional Right to Participate in a Disputed Parental Visitation Proceeding? In re A.G.

Update:  On June 19, 2014, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

On October 23, 2013, the Supreme Court of Ohio heard oral argument in the case of In re A.G. 12-2097. At issue in this case is whether the U.S. Constitution and the Ohio Constitution guarantee minors the right to attend and participate in disputed visitation proceedings between their parents. This case was argued at Bucyrus High School in Crawford County, as part of the Court’s off-site program.

Case Background

A.G.(the appellant here) was born in December of 1995. In 1998, A.G.’s father, the Appellee, (Father) filed for divorce. Following the filing, A.G.’s parents contentiously fought for custody of their daughter for years, including both absconding with her out of the jurisdiction and out of the country.

After the divorce was finalized in 2001 in Henry County, A.G.’s mother was awarded custody. In 2006, the case was transferred to the Juvenile Court of Ottawa County, where A.G.’s mother resided, and a guardian ad litem was appointed for A.G. After a period in which his visitation was suspended, Father was granted some supervised visitation during summer months.

In 2009 when A.G. was 13 years old, Father filed a motion for unsupervised visitation. Because A.G. disagreed with the position of her guardian ad litem about her father’s requested visitation, she hired her own lawyer and filed a motion to terminate all visitation with her father. Subsequently, A.G. filed a motion for leave to permit her attendance and participation at trial. The trial court denied the motion for leave on the basis that A.G. did not have a constitutional right to be present during a trial that involved a dispute between her parents.  Following a five day trial in which A.G. was not permitted to be present, the trial court granted Father’s motion for unsupervised visitation. The Sixth District Court of Appeals affirmed the judgment of the trial court, which has been stayed.  Read the oral argument preview of this case here.

At Oral Argument

A.G.’s Argument

It is a violation of a child’s due process rights under the state and federal constitutions to deny that child the right to attend and participate in a trial court proceeding to which she is a party and in which she has a direct interest in the outcome.  Once a guardian ad litem was appointed for A.G., she became a party to this action. Further, assuming the rules of juvenile procedure apply, which they should, persons with a direct interest in the case cannot be excluded. There is presently no guidance for a trial judge in making this decision. Even if the court’s ruling will not affect A.G. personally, she is seeking a test that can be applied in future cases to weigh the government’s interest in protecting the child versus the individual rights of the child. A.G.’s lawyer also argued that his effectiveness was compromised by not having his client there to provide comments and impressions and review exhibits instantaneously.

A Startling Representation by Father’s Lawyer

Before he began his argument, Father’s lawyer announced rather dramatically that this case was moot because on June 17, 2013 Father had signed a consent agreement terminating all of his rights in seeing his daughter.  Father now lives in North Carolina and does not care what happens in this appeal. Additionally, A.G. will turn 18 in December of this year, so if the Court’s decision isn’t out before then, she will be an adult, no longer subject to a visitation order. Needless to say, this did prompt some discussion.

Father’s Argument

The civil rules, not the juvenile rules, applied in this case. When this case was transferred to the Ottawa Juvenile Court, it was and remained a domestic relations case, in the framework of a post-divorce matter.  A.G. was never a party to the case. No order named her as such. While she had the right to a guardian ad litem and an attorney, she did not have the right to be named as a party or to be present.  Her rights in this action are derivative of her parents’.  Even if it was an abuse of the discretion by the trial court to exclude A.G. this does not rise to the level of a constitutional violation. A.G. had all the due process the relevant rules and statutes afforded her, and she did participate in this matter vigorously.

Pertinent Rules and Statutes

Civ. R. 75(B)- When it is essential to protect the interests of a child, the court may join the child of the parties as a party defendant and appoint a guardian ad litem and legal counsel, if necessary, for the child and tax the costs

Juv. R. 1 (C) (4) Exceptions. These rules shall not apply (4) In proceedings to determine parent-child relationships

Juv. R. 27(A)(1)(a)-other than in a serious youthful offender hearings, the public may be excluded, but a court cannot exclude persons with a direct interest in the case.

R.C. 3109.04(B)(2)(b) (The wishes and concerns of a child who is of suitable age and mental capacity are to be considered by a trial court in the allocation of parental rights and responsibilities.)

What Was on their Minds

Juvenile Proceeding or Domestic Relations Proceeding?

This was a primary issue.  While the matter clearly was certified to and accepted by the Ottawa Juvenile Court, it was totally unclear why.

Was this a juvenile court dealing with a domestic relations case in the role of a domestic relations court, asked Justice Pfeifer?

It is confusing as to what type of proceedings we actually have here, and who the parties to the action were, commented Justice Lanzinger.  Exactly what proceedings is AG arguing she was not allowed to participate in? Since it appears to be a post-divorce matter, why was it in Juvenile Court?

Was the matter certified with permission to Juvenile Court under R.C. 3109.06, or was it sent over because neither parent was deemed suitable, asked Justice Kennedy?

Was this a domestic situation and transferred to juvenile court, and R.C. 3109.04 applies, asked Justice O’Donnell?

Which Rules Applied?

There is an argument about whether the juvenile rules or civil rules applied, commented Justice Pfeifer, in a bit of an understatement.

Relevance of Child’s Age

At what age should a child be allowed to have the right to participate in a trial like this one, asked Justice O’Donnell in a number of ways.

How do we know that A.G. was of sufficient age, maturity and intelligence to participate meaningfully with her counsel, asked Justice O’Neill?

Right of Participation

What possible reason could there be to exclude the child from being present at the hearing, asked Justice O’Neill ? How can someone be permitted the right to participate in the action and then be prohibited from being present when the action is decided? How can you have a party able to file motions and not be permitted to participate and be in the courtroom? Doesn’t basic due process demand for this child a right to be heard in a meaningful fashion? How is that fulfilled when she has to sit in the hall?

Wasn’t the right to participate in the in-camera interview with the judge enough for A.G. in this case asked Justice Lanzinger?

Was A.G.’s lawyer present for all court proceedings, asked Chief Justice O’Connor? (answer: yes) Is the only question before the Court whether A.G. was properly excluded from sitting at table with her counsel? And exactly why was she excluded? She was already privy to all of it anyway, so the judge couldn’t have been protecting her from anything she didn’t already know, the Chief commented.

Did A.G. claim just a participatory right, or the right to be present, asked Justice O’Donnell? Was she a party? (the parties sharply disagreed on this point) Was it simply an abuse of discretion to exclude her? Or was she statutorily precluded?

Her surrogates are allowed in, but she is not, asked Justice Pfeifer?

Constitutional Violation?

In a key question of the day, Justice Lanzinger asked whether there was any authority that says once a person files a motion, due process constitutionally requires them to be present at trial?  Does the right to be present rise to a constitutional level ?

Was the Ohio Constitution’s Open Courts provision violated, asked Justices Pfeifer and O’Neill?

Mootness

If this case is not decided by December, when A.G. turns 18,  will the holding affect her?  Is this matter moot, asked Justice Pfeifer?

Is this case now moot, asked Justice O’Donnell (as he often does)

How it Looks from the Bleachers

To Professor Bettman

Even though this case will likely be moot as to A.G. who turns 18 in December, the Court is still likely to decide it under the “capable of repetition yet evading review” exception to mootness. It raises a very interesting question, and could affect many in the future

To my admittedly out-of-date practitioner ears, I was utterly baffled as to why this case was ever sent to juvenile court, instead of being a standard post-decree domestic relations matter.  Clearly A.G. correctly had a lawyer here, because of the conflict with her guardian ad litem.  But a majority may find that A.G.’s participation was discretionary under the civil rules (assuming they agree that those apply, which they seem to), rather than requiring a constitutional answer.  This will be trickier if A.G. was named a party-the lawyers just flat out disagreed about this, so much depends on the record.  If she was a party, her right to participate seems much clearer, although again, the court may not need to give a constitutional answer to the question—something Justice Lanzinger probed near the end of argument. If not, trial courts will need some guidance here—although to address Justice O’Donnell’s concerns, domestic relations judges already have experience with ascertaining a child’s wishes when appropriate in the allocation of parental rights and responsibilities under 3109.04(B)(2)(b).

Clearly Justices Pfeifer—who talked a lot, since he was in his home town—and Justice O’Neill are ready to go the constitutional route—both with due process and open courts.  Whether two others will join them is less certain. As the Court has said just recently in Mahoning Edn. Ass’n. of Dev. Disabilities v. State Emp. Relations Bd., Slip Opinion No. 2013-Ohio-4654, (and many times before) it won’t decide a case on constitutional grounds if it doesn’t have to. Still, a majority may find the trial court abused its discretion in excluding A.G. in this case—a non-constitutional answer to a thorny question. If it does, it will be interesting to study the rationale.

To student contributor Cameron Downer

During the oral argument, it was clear that the complicated nature of the proceedings caused some confusion among the justices as to which rules apply and whether A.G. was a party to the proceedings. Justice O’Donnell questioned whether there was a vested right for a minor to participate in a parental dispute, and if so, how the trial court would decide when the right would vest. He also asked twice whether or not the issue is moot since A.G. would be a legal adult by the time a decision would likely be made.

Throughout the argument, Justice Pfeifer asserted that the “open courts” clause of the Ohio Constitution had a bearing on the issue; however, this was not thoroughly discussed by the other justices. Justice O’Neill asked several times what reasons there may be to prevent a minor from being able to participate in a hearing on his or her own motion. On the other hand, Justice Lanzinger’s questions suggest that she thought A.G. did, albeit through other ways, participate in the proceeding, and that there is no authority to grant a right to be physically present at the proceeding.

Overall, it was a very interesting oral argument. I believe the scales are in favor of A.G.; however, it will likely be close call.

 

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