In re A.D.
Mary Lou Kusel, 6 South Second Street, Suite 834, Hamilton, Ohio 45011, for appellant, P.P.
Frost Brown Todd, LLC, Julie E. Byrne, Benjamin J. Yoder, 9277 Centre Point Drive, Suite 300, West Chester, Ohio 45069, for CASA/GAL, Christine Hacker
Jeannine C. Barbeau, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, guardian ad litem for appellant
Adolf Olivas, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, for A.D.
OPINION
RINGLAND, J.
{¶1} Appellant, the biological mother of A.D., appeals a decision of the Juvenile Division of the Butler County Court of Common Pleas granting permanent custody of her
{¶2} In 2008, Butler County Children Services received referrals regarding A.D., who was four years old at the time. The agency had previous involvement with appellant, and appellant‘s two older children were in placements with relatives. Although the allegations were unsubstantiated, through their involvement, the agency discovered that appellant had a drug abuse problem and a history of suicide attempts.
{¶3} On May 5, 2008, the agency filed a complaint alleging that A.D. was neglected and dependent. The complaint was filed after domestic violence issues occurred in the home between appellant and a boyfriend, and appellant tested positive for cocaine, attempted suicide and was hospitalized with a self-inflicted stab wound. The child was placed in the temporary custody of her patеrnal grandmother, who she was living with at the time.
{¶4} The court found A.D. was dependent on May 7, 2008 and a case plan with reunification as the goal was developed. The case plan required the mother to obtain stable housing, financial stability, a psychological evaluation, therapy and substance abuse treatment.
{¶5} On June 6, the court granted temporary custody to the agency based on concerns with the placement in the grandmother‘s home. The agency received reports that the grandmother had problems with drugs, the child‘s father was living in the home and was using drugs, and there were concerns regarding supervision of the child. A.D. was placed in a foster home.
{¶6} At an annual review on May 13, 2009, the case plan indicated that neither
{¶7} In September 2009, A.D. was placed in a new foster home. At this point, some of the child‘s relatives came forward as a potential placement option. The court granted the agency‘s request for a continuance of the permanent custody hearings, which were set to begin on January 11, 2010, in order for the agency to determine if relative placement was a viable option. The agency investigated three sets of relatives during the case, but two families were determined not appropriate for placement and the third family indicated that it was no longer interested in obtaining custody.
{¶8} A hearing on the permanent custody motion began in September 2010. At that time, appellant testified that she was living in a homeless shelter. She testified that she wanted A.D. back, but admitted that she was unable to take care of her at that time.
{¶9} An agency worker testified that A.D. had been in agency custody for 838 days and her foster parents were meeting the child‘s needs. She testified that relative placements had been investigated but were not appropriate or did not work out, and that all other placement options had been exhausted. The agency worker testified that appellant had recently completed substance abuse treatment and her drug screens have been negative since July 2009. Appellant‘s therapy and psychological services were ongoing.
{¶10} The worker testified that currently the primary issues with appellant were a lack of stable housing and income. She stated that the mother has always lived with friends during the agency‘s case, and had to move out of her most recent housing when her friend was evicted. The worker explained that appellant could not take the next step towards reunification with A.D. until she gets housing as it requires intensive in-home parenting work.
{¶11} A Family Preservation worker testified that he works at reunifying children back into the home and that he met appellant in June 2010. At that time, he observed visitation and determined there were no obvious concerns regarding appellant‘s parenting during the visit. He testified that he spoke with appellant about the importance of obtaining housing and employment for reunification purposes and that the lack of stable housing was a definite barrier to reunification.
{¶12} The permanent custody hearing continued on September 23, 2010. At that time, Holly Anneken, a Therapeutic Preschool Therapist, testified that she worked with A.D. from September 2009 to July 2010. The therapist diagnosed adjustment disorder and explained that A.D. has symptoms of guardedness and does not talk about her feelings easily. She ended her therapy with A.D. so that the child would work with an expert in reactive adjustment disorder.
{¶13} Melanie Grosser, a professional therapist with Serenity Counseling, testified that she diagnosed A.D. with reactive attachment disorder in June 2010 and has been working with the child since that time. She explained that A.D. has trouble with attachments to the point she will attach to everyone. The therapist explained that the child is working on expressing her emotions in an appropriate manner instead of avoiding the subject by stating that “everything‘s fine.” The therapist testified that A.D. stated she wanted to live with her foster parents and “play with” her biological mother.
{¶14} Grosser explained that in order to manage her reactive attachment disorder, A.D. needs a permanent, stable life and that moving homes is not good, as stability of the environment is important. The therapist stated that the lack of stability is a barrier to the
{¶15} As the hearing continued on September 27, 2010, Jennifer Crail, the agency caseworker from April 2008 to September 2008 testified that at that time, the agency‘s main concerns with appellant were her substance abuse, mental health and instability. Peggy Woods, a family resource specialist, testified that she observed appellant‘s visitations with A.D. from the beginning of the case until recently. She stated that in May or June of 2008, there were concerns with how sedated appellant appeared, which appeared to be due to the effects of the prescription medication she was taking. Initially, Woods observed the child was very whiny and needy with appellant, which was differеnt from how the child acted with the foster parents. Woods stated that although there was some concern regarding conversation topics, visits have generally been good and appellant has done better at recent visits.
{¶16} The child‘s foster mother testified that A.D. has been in her home for 13 months and is doing well. She testified that A.D. is bonded with both foster parents and foster siblings. The foster mother explained that A.D. has lung issues which are monitored and has ambiguous genitalia which required a lot of visits initially, but is now being monitored until puberty when more medical care will be required. The foster mother testified that the family would like to adopt A.D. and that she would allow visits with appellant as long as appellant remains healthy and there are no signs of drug abuse.
{¶17} At heаrings on September 28 and October 4, 2009 witnesses, including appellant‘s pastor and friends, testified that appellant is doing well in her substance abuse
{¶18} At the continuation of the hearing on October 7, 2010, Eckart Wallisch, a psychology assistant, testified that he evaluated A.D. on November 30, 2009. He diagnosed reactive attachment disorder, which he described as occurring when an attachment does not develop sufficiently with primary caregivers and as a result, the child does not develop normal bonds. Wallisch testified that the stability of placement for A.D. is important to her long-term psychological outlook and that the primary caregiver must be someone who has an understanding of the child‘s symptoms and treats them accordingly.
{¶19} Dr. Joseph Lipari, a psychologist, testified that he evaluated appellant in 2008. At that time, he determined that appellant could succeed at parenting if she does certain things. He explained that appellant‘s drug use was interfering with her parenting and that appellant reported abusing drugs when stressed, including stresses involving her children. He recommended substance abuse treatment, psychotherapy and psychiatric treatment, a support group, relapse issue planning, program monitoring and random drug screens. Lipari stated that his opinion regarding parenting does not take into account any variables regarding the child‘s needs.
{¶20} The permanent custody hearing continued on November 22, 2010 when Andrew Ellington, a counselor at the Hamilton Counseling Center, testified that he has been working with appellant since February 2008. He diagnosed bipolar disorder and stated that appellant is on medication. Ellington testified that appellant has made significant progress, much of it over the last year. He stated she is working on her goals, and is close to achieving them and that she has made significant progress in attitude, but housing is still a concern. He indicated that treatment included a focus on appellant‘s lack of independence, in not having stable housing and income, which he stated places her in a position where she is nоt
{¶21} Ellington testified that there is a focus on stability in counseling and he had received information that appellant had found housing and was using student loans to pay her rent. Ellington testified that if A.D. were returned, appellant would need counseling during the transition, as a child back in the home would bring stressors.
{¶22} At the final hearing on the permanent custody motion in January 22, 2011, appellant testified that she is in school to become a medical assistant, which is a two-year program. She has Pell grants and student loans of $15,000 a year to help with her schooling. Appellant testified she has been in her current residence two-and-one-half months and is paying rent with her student loan checks and she cuts hair on the side to meet her needs. On cross-examination, her testimony shоwed an inconsistency/shortage of $400-$500 a month. Appellant also testified that she does not completely agree with the reactive attachment disorder diagnosis, as she does not see an attachment problem since A.D. “goes to everyone” and “has never met a stranger.” She stated that she would get a third or fourth opinion on the diagnosis.
{¶23} After considering the evidence, the magistrate granted permanent custody of A.D. to the agency. Appellant filed objections to the magistrate‘s decision and after a hearing, the trial court overruled the objections. Appellant now appeals the trial court‘s decision to grant permanent custody of the child to BCCS and raises the following three assignments of error for our review:
{¶24} “THE JUVENILE COURT‘S DECISION TO GRANT PERMANENT CUSTODY TO BUTLER COUNTY CHILDREN SERVICES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AN ABUSE OF DISCRETION, CONTRARY TO LAW AND NOT SUPPORTED BY SUFFICIENT CLEAR AND CONVINCING EVIDENCE, AND WAS CONTRARY TO THE BEST INTEREST OF THE CHILD.”
{¶26} “THE JUVENILE COURT ERRED BY FAILING TO REPLACE THE GUARDIAN AD LITEM WHO DID NOT FULFILL HER DUTIES TO THE CHILD AS REQUIRED BY LAW.”
{¶27} In her first assignment of error, appellant argues that the trial court‘s decision to grant permanent custody is against the manifest weight of the evidence, an abuse of discretion, contrary to law and not supported by sufficient clear and convincing evidence.
{¶28} Before a natural parent‘s constitutionally protected liberty interest in the care and custody of her child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. Santosky v. Kramer (1982), 455 U.S. 745, 759, 102 S.Ct. 1388. An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to whether sufficient credible evidence exists to support the juvenile court‘s determination. In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶16. A reviewing court will reverse a finding by the juvenile court that the evidence was clear and convincing only if there is a sufficient conflict in the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520.
{¶29} Pursuant to
{¶30} The juvenile court found by clear and convincing evidence, and appellant does not dispute, that A.D. has been in the temporary custody of BCDJFS for more than 12 months of a consecutive 22-month period as of the date the agency filed the permanent custody motion. However, appellant does dispute the juvenile court‘s finding that granting permanent custody of A.D. was in the child‘s best interest.
{¶31}
{¶32} “(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
{¶33} “(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
{¶34} “(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period * * *;
{¶35} “(d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
{¶36} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶37} With respect to
{¶38} With respect to
{¶39} With respect to
{¶40} With respect to
{¶41} The court also found that A.D. has been diagnosed with reactive attachment disorder and has a special need for permanency and stability by someone who understands her needs. The court expressed concern regarding appellant‘s ability to follow through with A.D.‘s therapy and to meet her needs given appellant‘s expressed doubts about the accuracy of the child‘s diagnosis.
{¶43} The court concluded that given the needs of the child, it is unlikely that the mother will have means or ongoing stability necessary to provide the child with a legally securе placement. However, the court indicated that it is “possible” that mother can provide a legally secure placement.
{¶44} In conclusion, considering all of the factors, the court determined that A.D. has been in agency custody for over two years. The child has a significant mental health diagnosis that requires stability and predictability in order for the child to learn to protect herself from harm. The court found appellant has made notable strides, but despite this progress, her stability is tenuous and a possible relapse would be devastating to the emotional and psychological stability of the child. The court found the child is receiving the stability that she needs in her foster home and the foster parents are committed to the child‘s care.
{¶45} After carefully considering the record before us, we find no error in the trial court‘s determination that granting permanent custody is in A.D.‘s best interest. The court carefully weighed the factors and while appellant‘s progress is commendable, appellant‘s progress only began after the child had been in agency custody for over a year. In addition,
{¶46} In her second assignment of error, appellant argues that the court erred in failing to disqualify the attorney for the child and to appoint a new attorney because the attorney‘s support of granting permanent custody was contrary to the child‘s wishes. Within this assignment of error, appellant contends that the child was denied effective assistance of counsel, the child‘s attorney‘s representation was prejudicial, the child‘s right to counsel was violated, the court failed to determine the child‘s wishes by holding an in camera interview and the court erred in failing to disqualify the child‘s attorney and appoint new counsel for the child.
{¶47} In September 2008, the court appointed Adolf Olivas, a licensed attorney, as both attorney for the child and as guardian ad litem (GAL). A Court Appointed Special Advocate for the child (CASA) was also appointed on July 17, 2008, to represent the child‘s best interests. On September 22, 2010, the first day of hearings on the permanent custody motion, appellant‘s counsel indicated she believed there was a conflict issue regarding Olivas’ dual role as both GAL and attorney for the child.
{¶48} The basis of appellant‘s argument regarding the conflict in roles was that appellant told her attorney that A.D. was repeatedly asking appellant when she was coming
{¶49} At the start of the second day of hearings, Olivas stated that although he did not believe a conflict existed in his dual role as both attorney and GAL for the child, in acting in the child‘s best interest, he requested the court split the roles as suggеsted the previous day, and as solely attorney for the child, he would advocate for the child‘s wishes. The CASA was thereafter appointed as the GAL for the child and Olivas remained as attorney for the child.
{¶50} At the close of the case, the parties filed written closing arguments. Olivas, as attorney for the child, stated in his closing that A.D. has always expressed to him that she wants to stay with the foster parents and to “play” with her mom. He indicated the child has never indicated any feelings that she misses her mother, nor has the child expressed any desire to be in a more parent/child-like relationship with her biological mother. The closing argument advocated for the court to grant permanent custody.
{¶51} Appellant filed a motion to disqualify Olivas as counsel for the child. Appellant argued that Olivas was not representing his client‘s wishes as the child has “indicated a
{¶52} A juvenile who is the subject of a permanent custody proceeding is a party to the proceeding and therefore entitled to counsel. In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500. In some situations, a guardian ad litem can serve a dual role as both GAL and attorney for the child. See id at paragraph 18. However, the roles of GAL and attorney are not always compatible as they serve different functions. In re Baby Girl Baxter (1985), 17 Ohio St.3d 229, 232. The role of a GAL is to investigate the child‘s situation and then ask the court to do what is in the child‘s best interest, while the role of an attorney is to zealously represent his client within the bounds of the law. Id. Generally, the appointment of independent counsel is necessary when the child has “repeatedly expressed a strong desire that differs and is otherwise inconsistent with the guardian ad litem‘s recommendations.” In re B.K., Butler App. No. CA2010-12-324, 2011-Ohio-4470, ¶19.
{¶53} In this case, although initially acting in a dual capacity, Olivas agreed to act as attorney for the child and the CASA agreed to act as guardian ad litem on the second day of the permanent custody hearing. At that time, Olivas stated that he did not believe there was a conflict in his roles, but that he would agree to acting solely as attorney, and the CASA acting as GAL in order to best serve his client. However, appellant argues that Olivas’ representation as attorney for the child was ineffective and prejudicial because he failed to argue on behalf of the child‘s wishes.
{¶54} The basis of appellant‘s argument in this assignment of error is her assertion that the child wanted to return to her mother. However, the only support for this argument within the record is appellant‘s counsel‘s statement that appellant told her A.D. said she wanted to live with appellant. At the time appellant requested a separation of the roles of
{¶55} In written closing argument, Olivas argued in favor of granting permanent custody. After appellant filed the motion to disqualify the child‘s counsel, Olivas responded that during the proceedings the child had never indicated to him that she wished to return to her mother, and typically avoided the subject of where she wished to live, but indicated she wanted to stay with her foster family and “play with” her mother. Olivas stated that after the hearings and after his closing argument was filed, he met with his client and at that point, the child stated that she thought her mother could take care of her and she wanted to live with her mother. Olivas therefore indicated that a grant of permanent custody was not the child‘s wish.2 The trial court specifically stated that it took this statement into consideration when deciding the child‘s best interest.
{¶56} Based on our review of the above facts, we find that A.D. was not denied effective assistance of counsel, was not prejudiced, her right to counsel was not violated and the trial court did not err in failing to disqualify the child‘s counsel. During the permanent
{¶57} Within this assignment of error, appellant also argues that the trial court erred in failing to hold an in camera hearing to determine the child‘s wishes. As mentioned above, appellant requested an in camera hearing in conjunction with her argument that there was a conflict in Olivas’ dual roles as attorney for the child and guardian ad litem. The court indicated it wanted to hear from the mental health professionals in the case regarding the child‘s reactive attachment disorder diagnosis and how this condition might impact an in camera interview. The next day of the hearing, the parties agreed to separate Olivas’ roles. No further request for an in camera inspection was made at this point. During the course of the hearing, the mental health professionals were questioned regarding their opinion on an in camera hearing. Appellant again raised the issue of an in camera hearing in her motion to disqualify Olivas as attorney for the child.
{¶58} A court‘s decision whether to hold an in camera hearing with a child in a permanent custody case is reviewed for an abuse of discretion. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶56. In this case, the parties agreed to a separation of Olivas’ dual
{¶59} The court heard testimony from the mental health experts that an in camera hearing may not be helpful. Holly Anneken, A.D.‘s preschool therapist, questioned how A.D. would react in coming in and speaking to the court. She was concerned that the child would think that because of expressing her feelings it will sway the court, and Anneken questioned how the child would react if the decision did not go her way. Melanie Grosser, the child‘s therаpist, testified that an in camera hearing may not be of benefit because A.D. may not say anything. Grosser stated that the child often says things are “fine,” but her play indicates helplessness. Grosser explained that the child used this response as a way of coping and not having to discuss feelings.
{¶60} Given the facts before us, we find that the court did not abuse its discretion in failing to hold an in camera hearing to question the child regarding her wishes. Except for appellant, the testimony from witnesses was that the child wanted to stay with her foster parents but visit with her mom. The expert witnesses questioned whether an in camera hearing would be of benefit due to the child‘s reactive attachment disorder. Accordingly, we find no merit to appellant‘s argument that the trial court erred in failing to hold an in camera hearing. Appellant‘s second assignment of error is overruled
{¶61} In her third assignment of error, appellant argues that the trial court erred in
{¶62} As mentioned above, a CASA was assigned at the start of this case and agreed to act as GAL for the child on the second day of the permanent custody hearing. At this time, the court also appointed an attorney to represent the GAL. After the conclusion of the permanent custody hearing, the court issued post-hearing orders which included a time for submission of the GAL‘s report. A report, written by the attorney for the GAL was submitted to the court. Appellant argues that this report did not meet the requirements of Rule 48 of the Rules of Superintendence or
{¶63} An attorney was appointed to represent the GAL pursuant to
{¶64} The post-hearing report begins with the statement “[c]omes now [ ], the CASA/Guardian ad Litem for A.D., by and through counsel * * *” (emphasis added) and therefore indicates that although it is written by counsel, it is the report of the GAL through her representation. The report tracks the language of the Revised Code, listing the factors for determining best interest of the child, and summarizes the evidence presented at the hearing. Within a discussion of the best interest factors, the report also includes statements
{¶65} Moreover,
{¶66} On September 15, 2010, a few days prior to the start of the permanent custody hearing, the CASA filed a written report which contains a statement of her visits, observations, and a summary of the case to the present. The report also contains a recommendation that the court grant permanent custody to the agency. In addition, throughout the course of this case, the CASA filed at least six additional reports, again documenting her interactions, observations and recommendations in this case. Although the CASA did not become the GAL until the second day of trial, the parties all agreed to this change in designation, and were aware of the CASA/GAL‘s involvement and recommendations in this case. Therefore, given the numerous reports, including the report filed immediately prior to the hearing, appellant cannot show any prejudice due to the format
{¶67} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.