2016 Ohio 2658
Ohio Ct. App.2016Background
- Clark Cty. Children Services (CCCS) removed L.J. (10) and M.J. (9) in April 2014; children adjudicated dependent and temporary custody granted to CCCS; permanent custody motion filed Aug. 2015 and heard Sept. 2015.
- Father was not participating and lived outside the U.S.; mother (H.K.) has longstanding mental-health diagnoses, prior CPS involvement, and inconsistent compliance with services.
- Guardian ad litem (GAL) reported children expressed mixed wishes: L.J. vacillated between wanting to return and to stay in foster care; M.J. felt safer in foster care but would return "if [Mother] wouldn't cry anymore."
- Mother did not request in camera interviews of the children or appointment of separate counsel for them at trial; GAL served as advocate and recommended permanent custody to CCCS.
- Trial court found mother not credible, children improved in foster care, parental noncompliance and unstable mental-health history made reunification unlikely in reasonable time, and awarded CCCS permanent custody.
Issues
| Issue | Mother’s Argument | CCCS / Trial Court’s Position | Held |
|---|---|---|---|
| Whether court erred by not appointing separate counsel for the children | GAL conflicted with children’s wishes and counsel was required | No actual conflict shown; GAL suitably reported children’s wishes; no request made for counsel | No error — appointment not required absent conflict between GAL recommendation and child’s expressed wishes |
| Whether court erred by not conducting in camera interviews of the children | Court should have interviewed children to assess wishes and need for counsel | GAL testified to children’s wishes; children were young and inconsistent; mother did not request interviews | No error — court need not sua sponte interview children when GAL reports and no request/evidence of conflict |
| Whether the trial court failed to meaningfully consider the children’s wishes | Children weren’t properly informed of permanent-custody consequences, so wishes are meaningless | Court and GAL considered wishes with attention to children’s maturity and inconsistent statements | No error — court considered wishes with due regard for maturity; no requirement to explain every legal consequence |
| Whether awarding permanent custody to CCCS was against the manifest weight of the evidence | Mother argued she made sufficient progress and custody award was inappropriate | Evidence showed chronic instability, poor compliance, children’s progress in foster care, and low prospect of reunification | No error — clear and convincing evidence supported best-interest findings and inability to return within reasonable time |
Key Cases Cited
- In re Janie M., 131 Ohio App.3d 637 (6th Dist. 1999) (where GAL appointed, that attorney may also act as child’s counsel absent conflict)
- In re Smith, 77 Ohio App.3d 1 (6th Dist. 1991) (distinguishes GAL role from attorney role and recognizes potential conflicts)
- In re Baby Girl Baxter, 17 Ohio St.3d 229 (Ohio 1985) (describing differing duties of GAL and counsel and tensions between investigative/recommendatory and zealous-advocate roles)