In re H.M.
9 N.E.3d 470
Ohio Ct. App.2014Background
- LCCS moved for temporary custody of H.M. and L.L. and later J.L., asserting dependency and unsafe home conditions.
- Lewellan and James voluntarily participated in a case plan; concerns included safety, cleanliness, and Lewellan’s mental health while pregnant.
- GAL James Gudgel was appointed for the children; temporary custody orders were entered, with Losey and relatives housing the children.
- In 2012–2013, LCCS sought permanent custody; GAL reported reunification not in the children's best interests; ongoing concerns about home conditions and parenting persisted.
- At the permanent custody hearing in June 2013, witnesses testified to each child’s development and progress under foster care, but the court did not orally state findings and later entered judgment in July 2013 granting permanent custody to LCCS.
- Lewellan appealed asserting manifest weight issues, improper focus on mental health, failure to investigate the children’s wishes, GAL duties, and error in adopting LCCS’s proposed findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err by failing to investigate or reflect the children's wishes? | Lewellan argues the court/GAL did not ascertain or document the children's wishes. | LCCS contends the GAL and record support consideration of the children’s wishes. | First and fourth assignments sustained; inadequate investigation of the children's wishes; remand. |
| Did the court improperly rely on LCCS’s findings of fact and conclusions of law? | Lewellan maintains the court adopted the agency’s proposed judgment entry without independent review. | LCCS asserts proper review of proposed findings; minor drafting errors may be harmless. | Sixth assignment sustained; error in accepting LCCS’s proposed findings; remand. |
| Are the remaining assignments regarding mental health focus, reasonable reunification efforts, and GAL duties moot? | Lewellan argues the court relied on mental health and reunification issues to justify custody. | LCCS defends its focus on permanency and best interests; other issues not independently dispositive. | Assignments II, III, and V moot; reversed and remanded on other grounds. |
Key Cases Cited
- In re Hayes, 79 Ohio St.3d 46 (Ohio 1997) (parents have due process protections in permanent custody; welfare of child controls)
- In re Murray, 52 Ohio St.3d 155 (Ohio 1990) (parental rights are fundamental but not absolute when child's welfare requires)
- In re Cunningham, 59 Ohio St.2d 100 (Ohio 1979) (parental rights are prospective; welfare of the child governs)
- In re Lopez, 2006-Ohio-2251 (Ohio 2006) (child wishes must be considered via GAL or direct expression when determining best interests)
- In re Schaeffer Children, 85 Ohio App.3d 683 (Ohio App.3d 1993) (court may grant permanent custody even with limited factor evidence; must address all factors)
- In re K.H., 2010-Ohio-3801 (Ohio 2010) (GAL reports can support the court’s consideration of a child’s wishes)
- In re Williams, 101 Ohio St.3d 398 (Ohio 2004) (independent counsel when GAL also serves as attorney for child)