In re B.E.S.
2014 Ohio 346
Ohio Ct. App.2014Background
- Father (Russell Swegan) appealed the juvenile court's grant of permanent custody of three children (born 2003, 2004, 2006) to Trumbull County Children Services Board (TCCSB); mother surrendered parental rights. Children had a history of abuse/neglect, sexualized and trauma-related behaviors, and require ongoing specialized therapy and close supervision.
- Children were in agency care continuously (including foster placements) since August 2010 and in Trumbull temporary custody for more than 12 of a consecutive 22-month period; TCCSB moved for permanent custody in Nov. 2012.
- Father has limited literacy and cognitive deficits, is unemployed and on disability, lacks a driver’s license and stable transportation, and made only minimal progress in parenting programs and intensive parent–child sessions; therapist terminated intensive work after three sessions concluding father could not meet children’s needs.
- Guardian ad litem reports recommended permanent custody for each child based on children’s needs, father’s limited progress, safety concerns, and strong bonds between the children and their foster family (children expressed mixed wishes).
- Magistrate found (and trial court adopted) that statutory “12-in-22” custody condition was met and, by clear and convincing evidence, permanent custody to TCCSB was in the children’s best interest because father could not meet their specialized needs within a reasonable time despite reasonable agency efforts; this appeal followed.
Issues
| Issue | Plaintiff's Argument (TCCSB) | Defendant's Argument (Swegan) | Held |
|---|---|---|---|
| Whether permanent custody to the agency was supported where children were in agency custody 12+ months of a 22-month period and had specialized needs | TCCSB: 12-in-22 satisfied; father lacks cognitive capacity, stable resources, and progress to meet children’s therapeutic/supervisory needs, so permanent custody is in best interest | Swegan: Court over-weighted brief therapist interactions and ignored that he was following a case plan and making progress; PPLA earlier showed permanency not required | Held: Affirmed. Subsection (d) (12-in-22) applies and evidence (therapist, caseworker, GALs, father’s concessions) supports best-interest finding for permanent custody. |
| Whether the court improperly relied on limited therapy sessions to find father unfit and unable to parent | TCCSB: Therapist’s observations, combined with other testimony and father’s own admissions, were competent, credible evidence of incapacity; agency made reasonable efforts | Swegan: Therapist’s one-time/short interactions were given undue weight; father contends he was progressing on case plan | Held: Court did not abuse discretion — therapist’s testimony corroborated by other evidence supported the conclusion father could not reasonably reunify in timely manner. |
| Whether children’s wishes and appointment of counsel issues undermined due process (dissent) | TCCSB: (implicit) GALs represented children and best-interest considerations prevailed | Swegan / Dissent: Trial counsel did not read in camera interviews; new GALs did not testify about some children’s expressed wishes; counsel/child-counsel appointment failures deprived children/father of due process and effective assistance | Held by majority: Claims insufficient to overturn; dissent would reverse and remand, finding deficient counsel and failure to appoint separate counsel for children who expressed wishes conflicting with GALs’ positions. |
Key Cases Cited
- Miller v. Miller, 37 Ohio St.3d 71 (Ohio 1988) (parental right subordinate to child’s best interest)
- In re Hoffman, 97 Ohio St.3d 92 (Ohio 2002) (termination of parental rights compared to death penalty; heightened procedural protections)
- In re Murray, 52 Ohio St.3d 155 (Ohio 1990) (parents have a fundamental liberty interest in care and custody of children)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- Goldberg v. Kelly, 397 U.S. 254 (U.S. 1970) (due process requires opportunity to be heard and confront evidence)
- In re Williams, 101 Ohio St.3d 398 (Ohio 2004) (appointment of counsel for children/role of guardian ad litem in juvenile proceedings)