In re A.S., 2022 Ohio 1861

Background

A.S., removed from parental custody in Feb 2018, remained in FCCS temporary custody and later in a foster-to-adopt placement; FCCS moved for permanent custody in Dec 2019.
Case plans required J.S. (mother) to address substance abuse, mental health, parenting and housing; J.S. showed inconsistent compliance and positive drug screens.
P.H. (father) completed some tasks (paternity, parenting class) but had inconsistent mental health treatment, recent sobriety and newly secured housing; FCCS and witnesses expressed concerns about his cognitive limitations.
GAL Brian Herzberger served throughout, filed multiple reports, but largely did not: visit A.S. in person, observe visits with either parent, contact school or medical providers, or seek evaluations regarding P.H.'s cognitive issues.
Juvenile court admitted the GAL's report and testimony and granted permanent custody to FCCS (Apr 22, 2021). Parents appealed, principally arguing plain error in admitting the GAL's testimony and the court's failure to enforce statutory and rule-based GAL duties.

Issues

Issue	Appellant's Argument	Respondent's Argument	Held
Whether the juvenile court plainly erred by admitting the GAL's report and testimony and failing to require the GAL to faithfully discharge duties under R.C. 2151.281 and applicable rules	J.S.: GAL failed core duties (no in-person visits, no observation of parent–child visits, no contact with school/medical providers, no independent assessments); court should have removed GAL and excluded his testimony	FCCS: GAL deficiencies did not by themselves mandate reversal; parties did not object at trial; other evidence supported custody	Court found plain error: GAL materially failed duties; admission and failure to replace GAL required reversal and remand with instructions to appoint new GAL and rehear the matter
Whether the juvenile court’s permanent custody finding was supported by clear and convincing evidence (best interest; placement with parent in reasonable time)	Parents: GAL’s deficient investigation undermines the court’s best-interest finding and the record does not clearly show the child couldn’t be placed with a parent within a reasonable time	FCCS: Ample, credible evidence (stable foster placement meeting child’s special needs; parents’ instability/insufficient compliance) supported permanent custody	Court did not reach the merits after sustaining GAL error; this issue rendered moot on appeal and left for reconsideration on remand
Whether Mother received ineffective assistance of counsel at trial	J.S.: trial counsel’s performance was constitutionally deficient	FCCS: claim is without merit or not properly preserved	Court rendered the claim moot after finding GAL error; did not decide ineffectiveness on appeal
Whether Ohio Supreme Court pandemic tolling extended statutory time periods for R.C. proceedings (affecting P.H.’s appeal)	P.H.: tolling extended periods, impacting the timing/authority to grant permanent custody	FCCS: tolling did not alter the dispositive issues or justify reversal	Court did not decide tolling issue; rendered moot by reversal on GAL grounds

Key Cases Cited

Stanley v. Illinois, 405 U.S. 645 (U.S. 1972) (parental right to raise one’s children is a fundamental liberty interest)
Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (standard and protections required before terminating parental rights)
In re Murray, 52 Ohio St.3d 155 (Ohio 1990) (parental right described as fundamental civil right)
In re Hayes, 79 Ohio St.3d 46 (Ohio 1997) (termination of parental rights requires full procedural protections)
In re C.F., 113 Ohio St.3d 73 (Ohio 2007) (State’s authority to protect children and standards for custody determinations)
Eastley v. Volkman, 132 Ohio St.3d 328 (Ohio 2012) (standard for manifest-weight review of trial evidence)
In re Hoffman, 97 Ohio St.3d 92 (Ohio 2002) (purpose and role of GAL to provide independent evaluation to the court)
Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio 1997) (standards for applying plain-error review in civil context)