2022 Ohio 4602
Ohio Ct. App.2022Background
- Juvenile court granted HCJFS permanent custody of mother’s children D.V. (age 4) and J.A. (age 9); mother appealed. The appellate court remanded because the trial court had not considered the children’s wishes as required by R.C. 2151.414(D)(1)(b).
- On remand the GAL submitted an updated report: J.A. had recently said he missed his mother and would like to live with her if she were no longer involved with D.V.’s father; D.V. was deemed too young to express wishes.
- Mother requested an in camera interview of the children and asked the court to consider appointing independent counsel for any child whose wishes conflicted with the GAL’s recommendation (In re Williams issue).
- The juvenile court reviewed the GAL’s report, found J.A.’s statements conditional and not in conflict with the GAL’s recommendation, adopted prior findings, and again granted permanent custody to HCJFS based on mother’s lack of protective capacity and the children’s lengthy time in agency custody.
- Mother appealed three errors: (1) failing to conduct an in camera interview and to appoint counsel for J.A.; (2) failing to consider D.V.’s wishes; and (3) permanent-custody decision unsupported by sufficient evidence and against the manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred by not conducting an in camera interview of J.A. and appointing independent counsel | Mother: J.A.’s expressed wish to live with her conflicted with GAL; court should interview and appoint In re Williams counsel | HCJFS/GAL: J.A.’s statements were conditional and inconsistent; no actual conflict with GAL; trial court may rely on GAL report | No error. J.A.’s wishes did not conflict with GAL; no independent counsel or in camera interview required |
| Whether court erred by not considering D.V.’s wishes | Mother: D.V. should have been interviewed/considered | HCJFS: D.V. (age 4) was too young; parties did not object at hearing | No error. D.V. was too young; mother forfeited contemporaneous objection; GAL’s report properly conveyed his position |
| Whether permanent custody was supported by sufficient evidence / manifest weight | Mother: award lacked sufficient evidence and was against manifest weight | HCJFS: children were in agency custody >12 of 22 months (R.C. 2151.414(B)(1)(d)); mother lacked protective capacity; best-interest factors support custody | Affirmed. Clear and convincing evidence supported best interest and statutory ground; judgment not against manifest weight |
Key Cases Cited
- In re Williams, 101 Ohio St.3d 398 (Ohio 2004) (child is a party and may be entitled to independent counsel when child’s wishes conflict with GAL)
- In re C.F., 113 Ohio St.3d 73 (Ohio 2007) (trial court may accept GAL testimony about a child’s wishes rather than conducting direct in camera questioning)
- Eastley v. Volkman, 132 Ohio St.3d 328 (Ohio 2012) (standard for reversing on manifest weight of the evidence)
- In re Graham, 167 Ohio App.3d 284 (Ohio App. 2006) (discussing when appointment of counsel for child is required and reliance on GAL)