IN RE: A.C. D.M.
C.A. No. 27328
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
November 5, 2014
[Cite as In re A.C., 2014-Ohio-4918.]
WHITMORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 12-02-0118 DN 12-02-0119
WHITMORE, Judge.
{1} Appellant, Ashley J., (“Mother“), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her minor children, A.C. and D.M., and placed them in the permanent custody of Summit County Children Services (“CSB“). This Court affirms.
I
{2} Appellant is the mother of A.C., born August 17, 2006, and D.M., born October 1, 2009. Douglas C. is the father of A.C., and Dewayne M. is the father of D.M. Mother and Dewayne M. also had another child, I.M., born June 5, 2013. That child‘s custody is not at issue in the current appeal. Both fathers participated to varying degrees in the trial court proceedings, but neither father has appealed from the judgment of the trial court.
{3} A.C. had previously been removed from Mother‘s custody upon an adjudication of dependency in a 2008 case. At that time, there were concerns that Mother was using illicit
{4} Nine months later, based again on reports of drug abuse and child neglect, police conducted a welfare check at Mother‘s apartment. It is unclear from the record whether Dewayne M. resided with the family at this time, although Mother later testified that she had been in a relationship with him for six years and resided with him at the time of the permanent custody hearing. Five-year-old A.C. opened the door for the police. Mother was “semi-unresponsive” and in possession of Percocet that was not prescribed to her. Mother was arrested and later convicted of aggravated possession of drugs. She was sentenced to 12 months of community control. Additional charges for child endangerment were dismissed. The children were taken into custody pursuant to
{5} During the following month, Mother failed to comply with CSB‘s requests for drug screens or to otherwise begin services under the voluntary case plan. Therefore, CSB filed a dependency complaint on February 14, 2012. The complaint alleged that Mother continued to use drugs, even in the presence of her children, and left drugs accessible to them. The complaint further alleged that Mother often left the children unsupervised or with the maternal grandmother who also used drugs, and Mother failed to provide for the children‘s needs. Five-year-old A.C. was sometimes left to care for two-year-old D.M. and fed him potato chips. Following an initial hearing, the trial court permitted the children to remain in Mother‘s custody with protective supervision to CSB.
{7} All three parents were given case plans. Mother‘s case plan focused on substance abuse; counseling to address parenting skills, coping skills, and trauma from domestic violence; and participating in the Stop the Cycle program. Dewayne M.‘s case plan required him to follow the terms of probation from a September 2011 domestic violence conviction, and it also addressed substance abuse, anger management, and mental health issues. Douglas C.‘s case plan focused on substance abuse, housing, and abstaining from criminal behavior.
{8} Four days after the dispositional hearing, CSB sought emergency temporary custody of D.M. A.C. was not included in the order because she was with the maternal great grandmother visiting family in Georgia at the time. The basis for the motion was that Mother was unable to provide safe and stable housing for the children. Following her conviction for aggravated possession of drugs, Mother had lost her Akron Metropolitan Housing Authority housing. She and D.M. began staying with the child‘s paternal grandfather, but soon Dewayne M. and two grandmothers also moved into the home. Mother stated that the new residents were using drugs and a domestic violence incident occurred between her and Dewayne M. Mother planned to leave that home and to move into a home with four children and seven adults, one of whom was a registered sexual offender. Mother refused to accept an available space at a shelter as an alternative. A safety plan was implemented whereby Mother and D.M. would remain with the paternal grandfather and the new residents would leave. Notwithstanding this, the paternal
{9} D.M. had a brief, and unsatisfactory,1 placement with a paternal great aunt. He joined A.C. in a placement with the maternal great grandmother by early July 2012. The agency retained protective supervision. By August 8, 2012, the maternal great grandmother found herself overwhelmed by the level of care required by the two young children and requested that they be removed. She also had conflicts with Mother and Dewayne M. These parents had made insufficient progress on their case plans to warrant a return of the children, and there were no other suitable relatives available to assume care of them. The court then granted temporary custody to CSB, which placed the children in a foster home.
{10} Over the course of eight months, all three parents were unsuccessful in their efforts to address their case plans. For her part, Mother completed a substance abuse evaluation and was diagnosed with opioid dependence, heroin, but failed to complete the recommendations in her evaluation. In quick order, she was discharged from two counseling centers for noncompliance. The guardian ad litem was unable to contact her for three full months. Next, Dewayne M. was advised to engage in an opioid-specific intensive outpatient program that had three phases. He reached only the first step of the first phase before he was unsuccessfully terminated from Oriana House and incarcerated on his suspended sentence for domestic violence. He tested positive for opioids and marijuana on October 16, 2012. And finally, Douglas C. was released from prison in November 2012, but failed to accomplish any of the
{11} Accordingly, in January 2013, the trial court denied CSB‘s motion for an extension of temporary custody, finding insignificant progress by the parents on their case plans. Given these negative developments, CSB moved for permanent custody on April 8, 2013. As the parties prepared for a permanent custody hearing, the guardian ad litem filed a motion with the juvenile court, requesting the appointment of an attorney to represent the wishes of the children because their “wish to return to the custody of [Mother]” conflicted with her view that permanent custody was in their best interests. The trial court granted the motion and appointed an attorney to “represent the wishes of the children.”
{12} Two months later, Mother seemed to have turned things around. Because she was pregnant, the caseworker had been able to get Mother readmitted to a substance abuse counseling program that had previously discharged her upon the condition that she first go to a hospital for detoxification and a full evaluation. Mother was reluctant, but eventually agreed. Having admitted to using and experimenting with opioids for five years off-and-on, the hospital released Mother on Subutex, an opioid substitute for the treatment of addiction in pregnant women. Mother made progress in the treatment of substance abuse as well as mental health issues and successfully completed the Touchstone Program, residing there from March 27 to June 27, 2013. I.M. was born on June 5, 2013. Upon leaving Touchstone, Mother and the infant resided with the maternal great grandmother, and Mother was on a waiting list for housing. The agency saw the great grandmother as a supportive family member and her home as safe, clean, and appropriate. Mother had been sober for six months, as reflected by twice weekly drug tests. She completed the Stop the Cycle program and planned to continue her substance abuse treatment
{13} As to Dewayne M., he obtained an early release from prison in July 2013. He began substance abuse counseling at the end of September 2013, and began a Methadone program in November 2013, for an opioid addiction. His counselor attempted to focus on relapse prevention skills, including making better choices and identifying his triggers.
{14} With these improvements, CSB withdrew its pending motion for permanent custody in June 2013. The agency again sought an extension of temporary custody, and the trial court granted this extension. In September 2013, CSB moved to modify temporary custody to protective supervision based on Mother‘s significant case plan progress. The children were being prepared to return home and were looking forward to that.
{15} By October 2013, however, conditions deteriorated again. Mother was forced to leave the maternal great grandmother‘s home when she accused Mother of theft. Mother admitted that she took money from her, only disputing the amount. Mother tested positive for opioids on August 5, 2013, September 9, 2013, and October 21, 2013. Mother‘s Touchstone counselor believed she needed inpatient treatment and Mother agreed, but instead opted for an outpatient program and began residing with Dewayne M. For his part, Dewayne M. had two positive drug screens for amphetamines in August 2013. He failed to complete a substance abuse evaluation, had no independent housing, and had no verifiable source of income. Consequently, infant I.M. was removed from his parents’ custody, and, on November 5, 2013, CSB sought permanent custody of A.C. and D.M.
II
Assignment of Error Number One
THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW WHEN IT GRANTED PERMANENT CUSTODY TO SUMMIT COUNTY CHILDREN SERVICES DESPITE ITS NOT ASCERTAINING THE WISHES OF THE CHILDREN FROM EITHER THE CHILDREN OR THE GUARDIAN AD LITEM[.]
Assignment of Error Number Two
THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW WHEN IT GRANTED PERMANENT CUSTODY TO SUMMIT COUNTY [CHILDREN] SERVICES, AS ITS DECISION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error Number Three
THE TRIAL COURT ABUSED ITS DISCRETION AS A MATTER OF LAW AND COMMITTED PLAIN ERROR WHEN IT CONSIDERED THE GUARDIAN AD LITEM‘S REPORT IN GRANTING PERMANENT CUSTODY TO SUMMIT COUNTY [CHILDREN] SERVICES, WHEN THE GUARDIAN AD LITEM HAD FAILED TO COMPLETE HER DUTIES UNDER THE LAW[.]
{17} Mother‘s three assignments of error will be considered together because they are related. In her second assignment of error, Mother has argued that the judgment granting permanent custody is against the weight of the evidence because she and Dewayne M. substantially complied with their case plans. In her first and third assignments of error, Mother has asserted that the trial court erred in granting permanent custody to CSB because it did not have evidence of the wishes of the children, and that the trial court erred in considering the report of the second guardian ad litem because the report did not contain such evidence.
First Prong of Permanent Custody Test
{19} The trial court found that the first prong of the permanent custody test was satisfied on three alternative grounds: (1) the children had been in the temporary custody of CSB for at least 12 of the prior 22 months, see
{20} Mother does not directly challenge any of these first prong findings, but rather claims that the judgment granting permanent custody is against the weight of the evidence because she and Dewayne M. substantially complied with their case plans. This Court has repeatedly emphasized that substantial compliance with a case plan, in and of itself, does not establish that a grant of permanent custody to an agency is erroneous. See, e.g., In re M.Z., 9th Dist. Lorain No. 11CA010104, 2012-Ohio-3194, ¶ 19. Rather, the termination of parental rights is governed by the provisions of
{21} To the extent, however, that Mother‘s claim of substantially completing her case plan challenges the finding that she failed to remedy the conditions that brought the children into care, we find the argument to be without merit for two reasons. First, even if true, the first prong of the permanent custody test would nevertheless be satisfied by either of the alternative findings made by the trial court and left unchallenged by Mother. See In re M.M., 9th Dist. Lorain Nos. 10CA009744, 10CA009745, 10CA009746, 10CA009747, 2010-Ohio-2278, ¶ 12. Second, the record does not, in fact, demonstrate that Mother remedied the conditions that brought the children into care. Although only Mother has appealed, Mother has argued that the decision of the trial court should be reversed on the basis of case plan compliance efforts by both her and Dewayne M. Moreover, Dewayne M.‘s status is relevant because Mother apparently plans to reside with him and involve him in parenting the children. Consequently, we consider the case plan compliance efforts of both Mother and Dewayne M.
{22} In addition to considering the efforts towards case plan compliance before the filing of the motion for permanent custody as set forth above, we consider the efforts during the four month interval between the permanent custody motion, filed on November 5, 2013, and the permanent custody hearing on March 11, 2014. Mother tested positive for amphetamines on November 13, 2013, and for opioids on November 20, 2013, even though she was attending her second intensive outpatient treatment program at the time and was receiving Methadone. Mother‘s counselor reported that Mother completed the outpatient program, but she was not compliant with the aftercare program, having missed a recent counseling session and a recent aftercare session. Mother stated that she believed aftercare was voluntary. Mother had no
{23} Mother also failed to complete the requested treatment for mental health issues. Furthermore, Mother resided in eight different places during the course of this case, often losing her housing because of drugs, drug-related problems, criminal behavior, or lack of positive support. She was residing with Dewayne M. at the time of the permanent custody hearing. That was said to be concerning because Dewayne M. pays the rent, but was currently on probation and had a January 2014 theft conviction and a March 2014 positive test result for amphetamines. Mother had no other viable options for housing. Her only income was food stamps. She believed the felony on her record has kept her from getting a job, but also believed that her conviction could be expunged in June 2014. Notably, Mother and Dewayne M. list each other and arguments between them as triggers for their substance abuse. At the hearing, Mother testified that she believes Dewayne M. has changed, that she now trusts him, and that they no longer argue as much, although they do have conflicts involving the children. Mother admitted that his recent positive drug test is cause for concern, but she did not believe his drug use would continue.
{24} As to Dewayne M., the record reflects that, at the time of the hearing, he had maintained an apartment for three months, which is the longest he had had housing, and he had been employed by McDonald‘s for two months. At the same time, he had not completed anger
{25} The record fails to demonstrate that Mother and Dewayne M. substantially complied with their case plans. Correspondingly, the evidence clearly and convincingly indicates that Mother failed to remedy the conditions that caused the removal of the children from her care. See
Second Prong - Best Interests of the Children
{26} In order to determine the best interests of the children, the juvenile court must consider all relevant factors, including the factors enumerated in
Interactions and Interrelationships of the Children
{27} Both children began attending counseling in the fall of 2012 to address difficulties from the disruptions of their multiple placements and anger issues. Their counselor testified that the structure, consistency and behavior modification of the foster home, as well as affection from the parents and the foster parents, helped the children stabilize and decrease their anger issues. She explained that the children seemed happy, had improved self-esteem, and exhibited no anxiety. A.C. was thriving socially and was receiving outstanding grades. D.M. had decreased his temper tantrums, physical aggression and swearing. He was listening better. The children had made good progress and the counselor was able to close their cases shortly before the permanent custody hearing.
{28} The children were strongly bonded to Mother and Dewayne M., and they looked forward to their visits. D.M., in particular, was very attached to his father, Dewayne M., and got upset when he did not come to visits. The children sometimes had difficulties returning to the foster home, although they also had a very strong bond with the foster parents as well. D.M. was also said to be very attached to the foster father. The foster parents were not considering adoption because of their age.
{30} Despite this strong bond, the evidence did not demonstrate that the parents had the ability to provide long-term safety and stability for the children. The caseworker testified that although the parents provided some consistency during their two-hour visits, she had concerns about whether such consistency would be maintained if the children were returned home. The guardian ad litem testified similarly, stating that she had no major concerns about visits, but did have a concern regarding Mother‘s inconsistency in addressing her own case plan appointments. She wondered if Mother would be able to consistently get the children to school, doctor visits, and other appointments and for how long. She also was concerned with the lack of case plan compliance by Dewayne M. In two years, he had made little progress and very recently had a positive drug test result.
{31} All three parents have histories of drug abuse, criminal behavior, and instability. In addition to a conviction for the aggravated possession of drugs, Mother had only very brief employment at two fast food restaurants and moved at least eight times during this case. She admitted to using heroin since approximately 2007. This case represents Mother‘s second drug-related involvement with children services in four years. Her oldest child resided out of her care longer than with her.
{33} Douglas C. was convicted of burglary in April 2011, and he was convicted of theft and possession of drug abuse instruments in December 2013. At the time of the permanent custody hearing, his whereabouts were unknown.
{34} Besides the maternal great grandmother, who apparently moved out of state, the record does not reveal that the children had significant positive relationships with any other relatives. In particular, A.C. did not have a positive relationship with her father, Douglas C., even though she apparently resided with him from 2008 until 2011. Douglas C. visited with A.C. just three times and had not seen her in a year.
Wishes of the Children
{35}
{36} The purpose of a guardian ad litem for a child in a juvenile custody case is “to protect the interest of the child and ‘assist a court in its determination of a child‘s best interest.‘”
{37} In the present case, the guardian ad litem who was initially appointed to this matter was not an attorney and she recognized such a conflict to exist. She, therefore, filed a motion seeking the appointment of independent counsel to represent the wishes of the children, specifically explaining that the children wanted to return to Mother while she believed their best interests would be served by an order of permanent custody. No one opposed the motion, and the trial court granted it. At this point, the responsibilities of the guardian ad litem and those of the attorney for the children became distinct.
{38} The role of the guardian ad litem was to investigate the children‘s situation and then ask the court to do what the guardian feels is in the children‘s best interest, while the role of the attorney was to determine and represent the children‘s wishes within the bounds of the law. See In re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985). The children‘s attorney represented the children for nine months before the permanent custody hearing and then participated in the permanent custody hearing by examining witnesses and presenting arguments to the court. She did not appeal from the decision of the trial court.
{40} The second guardian ad litem served on this case for three weeks. She filed a written report before the permanent custody hearing. At the hearing, she explained that she familiarized herself with the case by reviewing prior reports, contacting the caseworker, observing Mother and Dewayne M. interact with the children at two visits, meeting with Mother at her residence, and reading much of the unofficial court file. She reported that the visits and home were generally appropriate. She expressed concerns, however, with the inconsistency of Mother and Dewayne M. over the course of two years. She explained that during her short time on the case, she did not have an appropriate opportunity to discuss the children‘s wishes with them. She admitted that she would have liked to have had more time on the case, but also asserted that she did not need more time in order to be confident in her recommendation. After concluding her investigation, she felt confident in recommending that permanent custody was in the best interests of the children.
{42} In her first assignment of error, Mother has argued that the trial court erred in granting permanent custody to CSB when it did not have evidence of the wishes of the children as derived from either the children or the second guardian ad litem. For the following reasons, we find this argument to be without merit.
{43} First, Mother has failed to demonstrate prejudice in the failure of the second guardian ad litem to ask the children their wishes for placement or in the lack of direct testimony by the children, either in camera or in court. The trial judge acknowledged the children‘s desire to return to Mother in reaching her decision. Their desire to return home was, therefore, part of the trial court‘s consideration in arriving at a determination of the best interests of the children. At trial, Mother did not proffer any wishes of the children that were different from those found by the trial judge, nor has she suggested any on appeal. Consequently, Mother has not demonstrated prejudice in the failure of the second guardian ad litem to inquire of the children or in the failure of the children to testify directly regarding their wishes for placement.
{44} Second, the record establishes that the trial court appointed an attorney to represent the children for the very reason that they wished to return to Mother and the opinion of the original guardian ad litem as to their best interests conflicted with that view. The children‘s attorney served as the legal representative of their personal interests and wishes for nine months and she continued in that role throughout the permanent custody hearing. She never indicated
{45} In her third assignment of error, Mother has asserted that the trial court committed plain error in considering the report of the second guardian ad litem because the guardian did not fulfill her role as set forth under
{46} Finally, we must emphasize that the wishes of the children are but one of the best interest factors for the consideration of the trial court in determining the best interests of the children. The fact that the children wished to return to Mother is not dispositive when considering the children‘s best interest. Although the trial court was required to consider each of the statutory best interest factors, no single factor is given greater weight or heightened importance and the trial court is required to weigh the totality of evidence on all of the factors to
Custodial history
{47} Absent evidence in the record to the contrary, we presume that A.C. resided with Mother for two years until she was removed from Mother‘s custody in the 2008 dependency case. A.C. was then placed in the custody of her father, Douglas C., until he was incarcerated in April 2011, at which time Mother regained her custody. Ninth months later, the present case regarding both children began on a voluntary basis. After one more month, the agency initiated a dependency case in juvenile court. The children remained in Mother‘s care under the protective supervision of the agency for four months. The agency then attempted two brief relative placements before obtaining temporary custody of the children and placing them in foster care. The children spent five weeks in one foster home. When those foster parents could no longer meet the behavioral needs of the children, the children were placed in a therapeutic foster home and they remained there for 16 months.
Legally secure permanent placement
{48} There was evidence before the trial court that the children were in need of stability and there were no suitable friends or relatives willing to provide for their long-term care. A child center recruiter searched through more than 20 relatives and made many attempts to find a relative placement for the children. Placement of D.M. with a paternal great aunt was unsuccessful. That relative volunteered to assume legal custody, but both children indicated that they did not want to reside with her. The maternal great grandmother also attempted to care for the children, but was not able to do so on a long-term basis.
{50} The children‘s counselor believed it would be very difficult for the children to go to another home, but also explained that if the children were returned to a home that was not stable or consistent, that they would be adversely affected. The caseworker similarly acknowledged that the children would experience some grief if permanent custody is granted, but that their current caregivers are willing to help them through the process and the agency would also assist if needed.
{51} Mother and the children obviously share a strong bond and she clearly loves them, but it is evident that the trial court‘s decision reflects the concern that these children were in need of safety and stability which could not be achieved absent the grant of permanent custody. Mother was given many opportunities to maintain or regain custody of her children, but she failed to take advantage of them. The concerns that initially brought the children to the attention of the agency have not been resolved. Notwithstanding brief periods of sobriety, the record reflects that Mother has not demonstrated the ability to sustain stability or consistency. At the time of the permanent custody hearing, Mother resided with a man who himself has substance abuse issues and recently tested positive for amphetamines. The evidence fails to demonstrate
{52} Upon careful review of the record, the trial court did not err in finding that permanent custody is in the best interests of the children. Additionally, the trial court‘s judgment terminating the Mother‘s parental rights is not against the weight of the evidence. Mother‘s three assignments of error are overruled.
III
{53} Mother‘s three assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.