{¶ 29} I concur in judgment only, and write separately, because I believe that the majority has resolved this case upon the wrong issue. The majority opinion says in sum that this case should be reversed and remanded because the trial court did not appoint a guardian ad litem for the minor child. It disposes of appellant's lead issue, i.e., that this case should be dismissed because the juvenile court failed to supply a complete record of the proceedings, as moot. With all due respect to the majority, the issue of whether a guardian ad litem should have been appointed is one involving the discretion of the trial court, and is reviewed by this court upon an abuse-of-discretion standard. This panel cannot conclude that the trial court abused its discretion without a full and complete record before it.
{¶ 30} The parties agreed, both in their briefs and at oral argument, that the minor child was arraigned upon the complaints of her mother, supposedly waived all of her rights (including counsel), and admitted to those complaints. However, no transcript can be located by the juvenile court as to this crucial proceeding on August 3, 2004. *Page 127
{¶ 31} This court has consistently held that the juvenile court's failure to follow the requirements of Juv.R. 37,2 as amended July 1, 1996, mandates reversal.In re A.F., Cuyahoga App. No. 82509, 2004-Ohio-1119,2004 WL 443096, at ¶ 7. See, also, In re B.E., Cuyahoga App. No. 81781, 2003-Ohio-3949, 2003 WL 21710762;In re Garcia (Apr. 12, 2001), Cuyahoga App. No. 78153,2001 WL 372074; In re Henderson, Cuyahoga App. No. 76695, 2001 WL 233395; In re Clayton (Nov. 9, 2000), Cuyahoga App. No. 75757, 2000 WL 1679425; In re Mason (July 13, 2000), Cuyahoga App. No. 76532, 2000 WL 968800; Inre Goff (June 17, 1999), Cuyahoga App. No. 75328,1999 WL 401383; In re Hart (Dec. 9, 1999), Cuyahoga App. No. 75326, 1999 WL 1129590; In re McAlpine (Dec. 3, 1998), Cuyahoga App. No. 74256, 1998 WL 842147; In re Collins (1998), 127 Ohio App. 3d 278, 712 N.E.2d 798; In re Ward (June 12, 1997), Cuyahoga App. No. 71245, 1997 WL 321492; Inre Solis (1997), 124 Ohio App. 3d 547, 706 N.E.2d 839.
{¶ 32} The state argues that despite all the above-cited cases, appellant should have provided an App.R. 9(C) statement of the proceedings. This argument has likewise been repeatedly addressed by this court. In In re Hart, supra, we stated:
{¶ 33} "This court is now called to balance the appellant's duty under App.R. 9 to see that the record, including the transcript, is filed with the appellate court and the court's duty to provide for the recording of the transcript pursuant to Juv.R. 37(A). Although Miller, supra [State ex rel. Heller v. Miller (1980),61 Ohio St. 2d 6, 15 O.O.3d 3, 399 N.E.2d 66 held that an indigent parent has a constitutional right to a transcript], turned on the question of indigency, the basic principles are applicable to the case sub judice * * *. The appellate rule does not absolve the trial court from complying with the rules of procedure and recording a hearing in the first place."
{¶ 34} And in In re A.F.,2004-Ohio-1119, 2004 WL 443096, at ¶ 10, 11, this court concluded, "We find that App.R. 9(C) does not excuse an obligation to provide a complete record as required under Juv.R. 37. * * * The judgment is reversed and the cause remanded."
{¶ 35} To add insult to injury in the state's argument, the balance of appellant's brief points out that during this "transcript unavailable hearing," in some form or fashion, the child at issue waived counsel and there was no guardian ad litem. Further, the child's mother was the "victim" of the crime and her grandmother (and legal guardian) argued for the child's immediate incarceration. In sum, at *Page 128 least allegedly,3 there was no one present who might aid the minor child and/or her appellate counsel in recreating a statement of the proceedings.
{¶ 36} I do not intend to demean the holding of the majority that failure to appoint a guardian ad litem constituted error and requires reversal of the case. See, e.g.,In re Sappington (1997), 123 Ohio App. 3d 448,704 N.E.2d 339. However, we review that issue upon an abuse-of-discretion standard, In re J.M.W., Summit App. Nos. 23066 23144, 2006-Ohio-6156, 2006 WL 3373141, and without a complete transcript, I am at a loss as to how this court might validly reach that conclusion.
2 {¶ a} Juv.R. 37(A) states:
{¶ b} "Record of proceedings. The juvenile court shall make a record of adjudicatory and dispositional proceedings in abuse, neglect, dependent, unruly, and delinquent cases * * *. In all other proceedings governed by these rules, a record shall be made upon request of a party or upon motion of the court."
3 Since, of course we have no transcript.