In re A.S.
(ACCELERATED CALENDAR)
D E C I S I O N
On brief: Yeura R. Venters, Public Defender, and Timothy E. Pierce, for mother J.S. Argued: Timothy E. Pierce.
On brief: April F. Campbell, for father P.H.
On brief: Steven Thomas D. Potts, for Franklin County Children Services. Argued: Steven Thomas D. Potts.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
DORRIAN, J.
{¶ 1} Appellant, J.S., mother of A.S., a minor child, and appellant, P.H., father of A.S., appeal the April 22, 2021 judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which granted permanent custody
of A.S. to appellee Franklin County Children Services (“FCCS“). For the following reasons, we reverse.
I. Facts and Procedural History
{¶ 2} On February 15, 2018, prior to the filing of the complaint in the matter before us, FCCS filed a complaint in a separate case alleging that A.S. was a dependent child pursuant to
{¶ 3} On July 29, 2018, Herzberger filed a GAL report in which he stated he interviewed or contacted the FCCS caseworker, J.S., P.H., and the attorneys for J.S. and P.H. Herzberger did not state that he visited A.S. or viewed A.S.‘s interactions with either
J.S. or P.H. at visitations. On August 8, 2018, FCCS filed a case plan.4 On July 30, 2018, the magistrate held an adjudicatory hearing on the dependency complaint. On August 15, 2018, the magistrate filed a decision and entry finding A.S. is a dependent minor child as defined under
{¶ 4} On January 11, 2019, FCCS filed a motion for an extension of temporary custody. On February 14, 2019, FCCS filed a semiannual review. On April 23, 2019, the magistrate held a hearing and filed findings of fact and conclusions of law, finding FCCS made reasonable efforts to prevent the continued removal of A.S. from the home. On April 23, 2019, Herzberger filed a second GAL report, in which he stated he interviewed or contacted an FCCS caseworker supervisor, J.S., P.H., and J.S.‘s and P.H.‘s attorneys. Herzberger stated in his report that he visited J.S. at the home she shared with P.H. on February 9, 2019. Herzberger noted in his report that he had not observed visitation between A.S. and J.S., but would schedule a time to observe them forthwith. Herzberger did not state that he visited A.S. at his placement at the time.
{¶ 5} On April 25, 2019, FCCS filed an amended case plan, which was approved and adopted by the court on May 6, 2019. Under the amended case plan, J.S. was required to complete the following by January 31, 2020: (1) alcohol and drug assessment, complete random drug screens, and comply with any recommendations from the assessment; (2) successfully complete a mental health assessment, including an assessment of parenting skills and domestic violence, and comply with any recommendations; (3) complete a psychiatric assessment for medication and comply with recommendations; (4) sign all releases of information on request; (5) complete a parenting education program and demonstrate acquired skills with A.S.; (6) comply with rules of probation; (7) attend all visitations; and (8) be available for monthly announced and unannounced contact with FCCS. J.S. was also expected to be able to meet all of A.S.‘s basic needs. Under the same case plan, P.H. was required to complete the following by January 31, 2020: (1) alcohol and
drug assessment, complete random drug screens, and comply with any recommendations from the assessment; (2) successfully complete a mental health assessment and comply with any recommendations; (3) sign all releases of information on request; (4) complete a parenting education program and demonstrate acquired skills with A.S.; (5) maintain stable housing and income for his family, including providing proof of housing, utilities, and income; and (6) be available for monthly announced and unannounced contact with FCCS. P.H. was also prohibited under the terms of the case plan from having any future incidents of domestic violence. On May 6, 2019, the magistrate filed an entry granting FCCS‘s motion for extension of temporary custody and adopting the April 25, 2019 amended case plan as an order of the court.
{¶ 6} On July 5, 2019, FCCS filed a motion for a second extension of temporary custody. On August 1, 2019, the magistrate held an annual review hearing at which the July 5, 2019 motion for a second extension of temporary custody was dismissed and the court sua sponte granted a second extension of temporary custody. At the August 1, 2019 hearing, the magistrate required Herzberger to file an updated GAL report, noting that “a report does need to be filed with the [annual] review.” (Aug. 1, 2019 Tr. at 8-9.) On August 2, 2019, Herzberger filed a third GAL report. In his third report, Herzberger stated he had previously interviewed or contacted J.S., P.H., and an FCCS caseworker supervisor. Herzberger did not describe the nature of his contacts with any of the individuals listed in the report or otherwise note he had observed A.S. at his placement at the time or with either P.H. or J.S. at visitations.
{¶ 7} On September 5, 2019, FCCS filed a semiannual review. On December 10, 2019, FCCS filed a motion for permanent custody5 of A.S. pursuant to
motion and to comply with In re Swisher, 10th Dist. No. 02AP-1408, 2003-Ohio-5446, ¶ 47-48, Sup.R. 48(D), Loc.Juv.R. 27, and
{¶ 8} On January 26, 2021, the juvenile court held a second pretrial hearing on the December 10, 2019 motion for permanent custody. At the second pretrial hearing, the juvenile court reminded Herzberger that he needed to update the GAL report and noted some children as young as A.S. were able to express their own wishes regarding placement. On February 4, 2021, Herzberger filed a final GAL report. In his report, Herzberger stated his last contact with J.S. was in February 2020; he attempted to contact J.S. by telephone three times in February 2021, but had not received a response. Herzberger stated he contacted P.H., but did not provide the date for the contact. Herzberger observed A.S. with his current foster caregiver via videoconference, but did not provide a date for the contact or state that he spoke with A.S. outside of the presence of the foster caregiver. Herzberger did not state in his report that he observed A.S. with either J.S. or P.H. at visitations.
{¶ 9} On February 11, 2021, the juvenile court held a hearing on FCCS‘s December 10, 2019 motion for permanent custody. At the hearing, Luann Layman, a social worker for FCCS, testified that she had been assigned to A.S.‘s case since December 31, 2018. According to Layman, A.S. had not been in either parent‘s custody since February 14, 2018, approximately two months before A.S.‘s first birthday. On that date, police responded to an emergency at J.S.‘s home. Police found J.S. to be mentally unstable and, as a result of the disturbance, removed A.S. from the home and placed A.S. in FCCS‘s custody.
{¶ 10} For the next eight months following the disturbance, A.S. was placed with C.S., A.S.‘s half-sister. Due to C.S.‘s inability to meet A.S.‘s special needs, A.S. was removed and placed in a treatment foster home for approximately six months. The foster parents were unable to safely meet A.S.‘s behavioral and developmental needs while keeping their other foster children safe, so A.S. was moved to a second treatment foster home. At the time of the permanent custody hearing, A.S. continued to reside at the second foster home, where he had been for approximately one year and nine months. A.S.‘s current foster parents were interested in adopting A.S. if adoption became available.
{¶ 11} Layman testified that A.S. was very attached to and bonded with everyone in his current foster home. A.S. did not ask Layman about J.S. or P.H. According to Layman,
A.S. was having all needs met and doing very well in his current foster home. Layman attributed this in part to A.S.‘s natural growth and development over time, but also because of the structure in the foster home and the additional services A.S. was receiving.
{¶ 12} According to Layman, A.S. knew who his parents were. A.S. was particularly excited to see P.H. at visitations. A.S. responded well to P.H. because P.H. was very joyful and happy with A.S. Layman testified there were many times A.S. was happy to see J.S. at visitations. However, A.S. also sometimes struggled with J.S. or was more reserved during visitations with J.S. because of her demeanor. Layman did not believe there was much of a bond between A.S. and either J.S. or P.H., other than A.S.‘s knowledge of who they were.
{¶ 13} Layman testified that several services are linked for A.S., including trauma focused counseling, occupational therapy, and Help Me Grow through his school to participate in a special needs preschool. He is also linked with the county developmental disabilities board. Layman testified A.S.‘s diagnosis is basic as he is only three years old, but he has developmental delays and is a little behind on speech. Layman testified she did not know how many doctors or therapy appointments P.H. was invited to and that she never notified him of any such appointments. Layman further testified that A.S. gets occupational therapy at school and special needs services at preschool, and “[h]e would have been invited to all of the school appointments” by the school. (Feb. 11, 2021 Tr. at 188.) It was determined A.S. did not need physical therapy or speech therapy although they are monitoring his speech. The occupational therapy is not an appointment but, rather, “something that happens in conjunction with his special needs preschool. It‘s not for a parent to attend.” (Feb. 11, 2021 Tr. at 192.) A.S. also had difficulty regulating emotions, especially when upset, which resulted in dangerous or damaging actions such as “throwing himself down and banging his head or even banging his [head] full force into a wall.” (Feb. 11, 2021 Tr. at 141.)
{¶ 14} Layman testified that J.S.‘s case plan was designed to address concerns related to drugs and alcohol, mental health, appropriate parenting, and meeting A.S.‘s needs. Layman stated that J.S. had not successfully maintained compliance with any portion of the case plan for an extended duration. J.S. had started many of the services, but had been inconsistent with providers. J.S. also failed to take drug and alcohol screens or otherwise maintain sobriety. Layman stated that J.S. had been linked with sufficient
resources to comply with case plan objectives but had not consistently availed herself of those resources to maintain compliance. From April 2018 to January 2020, J.S. had completed 38 of 151 alcohol and drug screens. Of the 38 completed screens, 25 screens were positive for marijuana, and several screens reflected irregular creatinine levels.
{¶ 15} J.S. completed several assessments, including drug and alcohol assessments at mental health providers, but did not regularly comply with recommendations from such assessments. When the case plan was adopted, J.S participated in psychiatric services with Lower Lights. J.S. also participated in counseling services at Concord Counseling, but was discharged from the program without successful completion in March or April 2019 after approximately three to four months. J.S. participated in comprehensive services at Ohio Guidestone beginning in January or February 2020 and was discharged from the program without successful completion in March 2020. J.S. began participating in services at Access Ohio in May 2020 and remained with them at the time of the permanent custody hearing. J.S. was compliant overall with the program except for some gaps in contact for weeks at a time.
{¶ 16} Layman testified that J.S. was generally consistent in providing releases, staying in contact with Layman, and participating in visitations with A.S., with several notable exceptions. Overall, Layman described J.S.‘s behavior during visitation as appropriate. There were times that FCCS staff approached J.S. about smelling of alcohol during visits. However, even in those instances where she smelled of alcohol, J.S. generally did not display combative or erratic behavior, or otherwise behave in a way that would necessitate FCCS ending the visitation. J.S. responded appropriately to A.S.‘s behavior, including by getting on the floor to prevent A.S. from being hurt by headbanging or by throwing himself on the floor. FCCS staff worked with both J.S. and P.H. to educate them about A.S.‘s behavior.
{¶ 17} In 2018 and early 2019, J.S. was consistently visiting A.S. every week. At the end of 2019, J.S. missed several visitations, resulting in her seeing A.S. approximately every other week. In recent months before the permanent custody hearing, there had been challenges with providing releases and participating in meetings due to J.S.‘s housing instability. J.S. stopped coming to visitations at FCCS‘s offices after a visitation on November 5, 2020. At that visitation, J.S. arrived late and smelling of alcohol. J.S. was very
hostile with FCCS staff and aggressive toward P.H. J.S. voluntarily agreed to leave the visitation and then did not return at the next scheduled visitation. FCCS removed J.S. from the visitation schedule with A.S. on January 5, 2021; J.S. did not participate in another visitation until February 2, 2021. On February 2, 2021, J.S. participated in a virtual visitation with A.S. and FCCS staff via videoconferencing technology. Layman described the visitation as challenging due to technical difficulties. J.S. ended the visit early after 10 to 15 minutes.
{¶ 18} Layman testified that J.S. had been living with P.H., who had been paying for housing in a series of residences. There were other issues related to stability of J.S.‘s housing, including break-ins and “domestic concerns” which sometimes resulted in either P.H. or J.S. leaving the residence for a few days at a time. (Feb. 11, 2021 Tr. at 159.) At the time of the permanent custody hearing, J.S. no longer resided with P.H. and was homeless. Layman testified that J.S. failed to complete the parenting course as required by the case plan. Layman opined that J.S. had not demonstrated good parenting because, although it was clear she loved A.S., J.S. was unable to consistently demonstrate that she was able to meet both her and A.S.‘s needs in part due to ongoing concerns with mental health and sobriety.
{¶ 19} Next, Layman testified regarding P.H.‘s compliance with his case plan requirements. P.H. completed a drug assessment and screenings, which were required due to his admitted use of marijuana. According to Layman, there were domestic dispute concerns involving P.H., including situations in which he was the aggressor as well as situations in which he was the victim. P.H. was required to participate in a mental health assessment, attend counseling, and comply with any recommendations from the counseling. P.H. had been inconsistent with attending counseling; he attended two to three months of appointments, but had not successfully completed any program. P.H. had not established himself enough with a provider to determine if they would make a recommendation for him to have additional domestic violence specific counseling. P.H. completed the required parenting course.
{¶ 20} Layman received a voicemail from P.H.‘s mother informing Layman that P.H. was obtaining new housing on or about February 5, 2021 and providing her with the address. Layman did not learn that P.H. had actually secured housing until the date of the
permanent custody hearing. According to Layman, P.H. was very consistent in attending visitations with A.S., missing a minimal number of visitations. When FCCS permitted, P.H. participated in two visitations by videoconference during the COVID-19 restrictions.6 P.H. was responsive to A.S.‘s special needs during visitations. Layman testified she talked with P.H. and J.S. and worked through some of A.S.‘s acting out behavior and headbanging. In response to a question whether P.H. and J.S. “do a pretty all right job of managing the -- the head banging at the visits,” Layman testified “[y]es,” and “mom did a pretty good job with that, mom and dad both do.” (Feb. 11, 2021 Tr. at 157.) She also noted that A.S. is older now and learning some techniques of self-regulation and it is easier to reason with a child of three and one-half than a one or two year old child. When P.H. had the opportunity to spend longer amounts of time with A.S., he would decline those opportunities. P.H. struggled to entertain A.S. for longer than one hour. Layman explained that some of the difficulty with visitations was due to restrictions put into place by the COVID-19 pandemic:
Things have changed as far as what parents can do in visitation for safety and health of everybody, since we reopened visitation in August of 2020. So there‘s not a lot -- there‘s no food and there‘s nothing brought in from the outside. So it challenges visits, but as a parent, you need to be able to parent your child 24/7.
(Feb. 11, 2021 Tr. at 166.) Layman testified there were concerns with P.H.‘s comprehension and cognitive abilities. According to Layman, P.H. disclosed that “he doesn‘t think like other people think and that he doesn‘t read well.” (Feb. 11, 2021 Tr. at 170.)
{¶ 21} FCCS investigated placing A.S. with a maternal aunt who expressed interest in obtaining custody of A.S. FCCS, in cooperation with Pennsylvania authorities, began a home study with A.S.‘s aunt as part of Interstate Compact on the Placement of Children (“ICPC“) process. However, A.S.‘s aunt declined to move forward with the process. A.S.‘s maternal grandparents also began to participate in the ICPC process while they determined whether or not they would be able to care for A.S. In 2020, A.S.‘s maternal grandparents moved from South Carolina to Pennsylvania without notifying FCCS. In January 2021, maternal grandmother remained undecided on whether or not she would be interested in pursuing placement.
{¶ 22} Layman testified that A.S. was in need of a legally secure permanent placement. According to Layman, there was never a period of time where FCCS was able to return A.S. to the custody of either parent. A.S. had been in FCCS‘s custody for over two years. Layman opined that granting permanent custody for purposes of adoption was in A.S.‘s best interests because A.S. needed the stability and consistency inherent in a permanent placement. Layman testified that a change to J.S.‘s housing circumstances would not alter her conclusion that granting permanent custody was in the best interests of A.S. because J.S. had not completed and maintained the other requirements of the case plan. Layman did not recommend placement with J.S. because J.S. had issues of instability regarding mental health, sobriety, housing, and income in addition to ongoing concerns with J.S.‘s ability to parent A.S. and consistently provide for A.S.‘s special needs. Layman testified that reunification with P.H. was not recommended because P.H. had only recently achieved sobriety and secured housing. Further, Layman expressed concerns related to P.H.‘s mental health or cognitive delays because it impacted P.H.‘s ability to meet his own needs independently in addition to complications with A.S.‘s special needs and behaviors.
{¶ 23} On cross-examination, Layman testified that prior to the COVID-19 pandemic, P.H. brought clothing, gifts, and food for A.S. at visitations. For a period of time at the beginning of the pandemic, from March 16 through August 1, 2020, FCCS stopped allowing visitation. During that time, FCCS did not facilitate visitation between A.S. and either P.H. or J.S. over videoconferencing because FCCS was not equipped to use videoconferencing technology at the time. FCCS did not establish contact between P.H. and A.S.‘s current foster parents. Instead, FCCS mailed pictures of A.S. to P.H. and J.S. at their various residences. P.H. consistently attended visitations both before the pandemic-related restrictions on in-person visitations were implemented and after they were lifted. Once visitations resumed, FCCS provided parents with coloring pages and crayons for visits but did not permit parents to bring items to the visitations.
{¶ 24} Layman testified that P.H. completed all genetic testing and releases of information requested by FCCS. In 2019, P.H. was linked with a mental health counseling service but was terminated from the program for failing to attend sessions. In December 2020, P.H. became reinvolved with mental health counseling. According to Layman, P.H. was scheduled for five counseling sessions, which were held virtually due to COVID-19
pandemic restrictions on in-person counseling sessions. The counseling service cancelled two of the five sessions through no fault of P.H. Of the three sessions he could attend, P.H. attended one full session, participated in about half of one session, and completely missed one session.
{¶ 25} Layman testified that A.S.‘s behaviors were challenging although they had become more manageable over time as A.S. learned coping skills. P.H. was sometimes able to help manage A.S.‘s behavior and calm A.S. down during visitations. Layman stated it was fairly common for a child of A.S.‘s age to be focused on the people around him instead of asking about other people who were not present at the time, such as P.H. and J.S. A.S. currently receives occupational therapy through his school. Layman stated it was possible for P.H. to take A.S. to a special needs school that provided occupational therapy.
{¶ 26} When asked by the court whether there were any concerns with placing A.S. with P.H., Layman testified “[s]imilar concerns [parenting to address and learn A.S.‘s special needs and to be able to meet his needs consistently]. He‘s just newly established a sobriety where he‘s been clean for a few -- couple months now. Inconsistency with stability with his menta -- mental health or cognitive delays to be able to meet his own needs independently let alone meet a child‘s needs and to meet the child‘s needs that has special needs and special behaviors. He‘s just established housing, but I haven‘t been able to verify that so that‘s new. Housing been instable -- unstable for periods of time over these last few years.” (Feb. 11, 2021 Tr. at 242.)
{¶ 27} Next, Herzberger testified that he was the GAL both on this case and the prior case involving A.S. that had been dismissed. Herzberger stated he was in compliance with his GAL training requirements and had received training on recent changes to the Rules of Superintendence for GALs. In the course of investigating the matter, Herzberger reviewed all court filings, discovery provided by FCCS, and the case plan. Herzberger had recently spoken with Layman, P.H.‘s mother, and P.H., but not J.S.
{¶ 28} Herzberger testified he was not able to observe A.S. with his current foster family in person due to concerns regarding the ongoing COVID-19 pandemic, but was able to participate in a virtual visit with A.S. and at least one of A.S.‘s foster parents. According to Herzberger, A.S. appeared to be bonded with one of the foster parents. Herzberger did not observe anything that raised concerns regarding the care A.S. was receiving from the
second foster family. However, Herzberger admitted he did not witness A.S.‘s interactions with all the members of A.S.‘s foster family.
{¶ 29} Herzberger stated he had been unable to contact J.S. immediately prior to the permanent custody hearing. Herzberger was concerned about J.S.‘s inconsistency in complying with the case plan requirements. Furthermore, Herzberger was concerned about J.S.‘s ability to respond to A.S.‘s special needs and J.S.‘s lack of suitable housing.
{¶ 30} Herzberger was able to contact P.H. via videoconferencing prior to the permanent custody hearing. Herzberger virtually viewed P.H.‘s new residence, which he described as “wonderful.” (Feb. 11, 2021 Tr. at 249.) He stated that the residence looked almost brand new, had several safety features, and would meet both P.H.‘s needs and those of a child. Herzberger acknowledged that P.H. was complying with screening requirements, staying in touch with FCCS, and had expressed commitment to playing with A.S. and taking A.S. to the doctor when needed. However, Herzberger believed, just based on his conversations with P.H., that P.H. was not in a position to recognize A.S.‘s special needs or to meet A.S.‘s needs in general. Herzberger also was concerned with P.H.‘s ability to pay for housing considering the cost of his current residence relative to his income. Yet, he also testified that P.H. indicated he planned to apply for Section VIII.
{¶ 31} No family members contacted Herzberger about a potential alternative legal placement. Herzberger had no doubt that both J.S. and P.H. loved A.S. According to Herzberger, A.S. was not able to express any wishes regarding permanent custody or reunification. Herzberger opined that A.S. was in need of a legally secure and permanent placement. As a result, he recommended the court grant the motion for permanent custody.
{¶ 32} On cross-examination, Herzberger admitted he had not visited A.S. when he was in C.S.‘s custody. Herzberger also had not observed any of P.H.‘s visitations with A.S., either before or after the beginning of the COVID-19 pandemic. Herzberger stated that P.H.‘s new residence appeared to have ample space, working utilities, and suitable furniture. Herzberger had no difficulty contacting P.H., and described him as “cooperative and polite.” (Feb. 11, 2021 Tr. at 255.) Herzberger stated P.H. might have had some issues with case plan compliance, but observed that P.H. “tried his best as he is able to with the developmental issues that he has.” (Feb. 11, 2021 Tr. at 255.)
{¶ 33} Herzberger testified he spoke with J.S. “a fair amount” at the beginning of the case, but did not have frequent communication with her after the adjudicatory hearing in 2018. (Feb. 11, 2021 Tr. at 257.) However, Herzberger admitted that since 2018, he only had two face-to-face conversations with J.S. outside of contact at the court. Herzberger never observed any of J.S.‘s visitations with A.S. Herzberger was aware of J.S.‘s engagement with services at Access Ohio and stated that his recommendation might have been different if J.S. had been engaging with services earlier in the history of the case.
{¶ 34} Herzberger seemed to suggest to the court that another option was to continue the child in the placement, however the court explained it was not able to grant another extension as it had been almost three years since the complaint was filed. The court ultimately opined it was in A.S.‘s best interest for the motion for permanent custody to be granted.
{¶ 35} Next, J.S. testified that A.S. went to live with C.S. upon being removed from her custody. J.S. admitted she was an alcoholic and stated that she was working with her case managers at Access Ohio to address her alcoholism. J.S. stated she had a “license” to allow for use of marijuana, which she admitted to smoking. (Feb. 11, 2021 Tr. at 80.) J.S. testified she would not drink alcohol or use drugs again. J.S. also stated she would never drink around A.S. again. J.S. was diagnosed with bipolar disorder, post-traumatic stress disorder, and anxiety. J.S. planned to receive medication for bipolar disorder after the permanent custody hearing.
{¶ 36} J.S. lived with P.H. at four different residences from the time A.S. was removed until she became homeless, approximately December 2020. At the time FCCS obtained custody of A.S., J.S. lived with P.H. at a residence on Siebert Avenue in Columbus. After leaving the residence on Siebert Avenue, J.S. testified she and P.H. lived at residences on East Main Street, Napoleon Avenue, and Frebis Avenue in Columbus. Although J.S. acknowledged she was unemployed and had been homeless for the last four months, she had funds and was seeking housing. J.S. did not have a driver‘s license and used buses for transportation.
{¶ 37} At her visitations with A.S., J.S. brought food and toys. J.S. denied ever drinking before visitations with A.S., stating that she only sometimes drank the day before visitation. According to J.S., FCCS did not provide her with notice of A.S.‘s appointments
with doctors or return several phone calls. J.S. stated FCCS‘s decision to temporarily discontinue visitation with A.S. due to the COVID-19 pandemic hurt her ability to bond with A.S. during that time.
{¶ 38} J.S. did not believe Herzberger gained enough information about her to render an opinion, specifically citing Herzberger‘s single visit to her residence. J.S. stated she believed it was in A.S.‘s best interest to be returned either to P.H. or her. When asked whether she was able to have A.S. returned to her on the day of the permanent custody hearing, J.S. stated “[i]f I had a home, absolutely could and I have a team in the city that‘s unbelievable from churches to doctors that all know each other and have walked a mile with me to get me where I‘m at today.” (Feb. 11, 2021 Tr. at 303.)
{¶ 39} Next, P.H. testified that he entered into a relationship with J.S. approximately five years before the permanent custody hearing. According to P.H., J.S. had been aggressive toward him and filed domestic violence charges against him. P.H. had never been convicted, but had been ordered to stay away from J.S. P.H. was living with J.S. but was not present when A.S. was removed and placed into FCCS‘s custody. According to P.H., J.S. was drinking alcohol every day before A.S. was removed and was responsible for causing issues that resulted in their being removed from four different residences. P.H. ended the relationship with J.S. in December 2020.
{¶ 40} P.H. admitted to smoking marijuana with J.S. over the course of their relationship. However, P.H. stated he quit smoking entirely in fall 2020 because his “concern is that little boy need[s] to come home with me; that‘s my main concern, that little boy.” (Feb. 11, 2021 Tr. at 46.) P.H. completed paternity testing, an alcohol and drug assessment, and parenting classes; he was scheduled to participate in counseling with North Central Mental Health following the permanent custody hearing.
{¶ 41} When A.S. was removed by FCCS, P.H. lived with J.S. at a residence on Siebert Avenue. After moving out of the residence on Siebert Avenue, P.H. testified that he lived with J.S. at residences on Mound Street, Napoleon Avenue, and Cleveland Avenue. Thereafter, P.H. stayed with his mother to save money. In February 2021, P.H. moved into a residence with two bedrooms, where he lived by himself. P.H. paid for his own utilities and spent $835 per month on rent. P.H. testified he had received Social Security Disability Insurance (“SSDI“) payments for his entire life and was receiving approximately $1,185 per
month at the time of the permanent custody hearing. P.H. did not have a driver‘s license and he used buses and taxis for transportation.
{¶ 42} P.H. testified he attended visitation with A.S. every Monday and, prior to COVID-19 pandemic-related restrictions, brought food, toys, and clothing to give to A.S. at visitations. P.H. used to be able to visit with A.S. for two hours when both he and J.S. attended visitation, but FCCS had reduced his visitation time to one hour after J.S. stopped coming to visitations. P.H. was unaware of any special needs that A.S. might have, but agreed that A.S. had temper tantrums. P.H. was uncertain of whether A.S. was in preschool. If he had custody of A.S., P.H. testified he would take A.S. to preschool and would be able care for any special needs A.S. might have. P.H. also testified that he would get A.S. on Social Security Disability and take him to appointments. Furthermore, if A.S. was returned to P.H.‘s custody, P.H. would not allow J.S. to be unsupervised around A.S. until J.S. complied with case plan requirements, including taking prescribed medication and screening for drugs and alcohol.
{¶ 43} On March 16, 2021, FCCS filed a semiannual review. On April 22, 2021, the juvenile court filed a judgment entry granting permanent custody of A.S. to FCCS.
II. Assignments of Error
A. J.S.‘s Appeal
{¶ 44} J.S. appeals and assigns the following four errors for our review:
[I.] The lower court plainly erred when it failed to apply and enforce
R.C. 2151.2187(D) and (I) with respect to the GAL for A.S.7[II.] The lower court plainly erred by admitting the testimony of the GAL.
[III.] Attorneys for Mother J.S. provided ineffective assistance of counsel in violation of her rights under the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 1, 10, and 16 of the Ohio Constitution and
R.C. 2151.352 .[IV.] The lower court‘s award of permanent custody to the agency was not supported by clear and convincing evidence and was against the manifest weight of the evidence.
B. P.H.‘s Appeal
{¶ 45} P.H. appeals and assigns the following three errors for our review:
I. The trial court‘s decision to grant permanent custody of A.S. to Franklin County Children Services should be reversed, because the record does not support the trial court‘s finding that A.S. could not be placed with his father within a reasonable time.
II. The trial court‘s decision to grant permanent custody of A.S. to Franklin County Children Services should be reversed, because it was not in A.S.‘s best interest to do so.
III. The trial court‘s decision should be reversed because the Supreme Court of Ohio‘s tolling provision extended the time periods required by
R.C. 2151.414 .
III. Applicable Law—Parenting Is a Fundamental Right
{¶ 46} “The right to parent one‘s child is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 16, of the Ohio Constitution.” In re L.W., 10th Dist. No. 17AP-586, 2018-Ohio-2099, ¶ 6. See also In re Murray, 52 Ohio St.3d 155, 157 (1990), quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“[T]he right to raise one‘s children is an ‘essential’ and ‘basic civil right.’ “). “Parents have a ‘fundamental liberty interest’ in the care, custody, and management of the child.” Id. at 157, quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982). “Permanent termination of parental rights has been described as ‘the family law equivalent of the death penalty in a criminal case.’ Therefore, parents ‘must be afforded every procedural and substantive protection the law allows.’ ” In re Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991).
{¶ 47} However, the state has broad authority to intervene to protect children from abuse and neglect.8 In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28, citing
IV. J.S.‘s First and Second Assignments of Error—GAL
{¶ 48} In her first and second assignments of error, J.S. argues the juvenile court committed plain error by admitting the testimony of the GAL and by failing to apply
A. Applicable Law and Rules
{¶ 49}
Notes
In conducting its review, a court of appeals must make every reasonable presumption in favor of the juvenile court‘s findings of fact and judgment. L.W. at ¶ 8; Eastley at ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984), fn. 3. ” ‘[I]f the evidence is susceptible of more than one construction, we must give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the trial court‘s verdict and judgment.’ ” L.W. at ¶ 8, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988). Moreover, a court of appeals must recognize that “[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceedings and the impact the court‘s determination will have on the lives of the parties concerned.” (Internal quotations omitted.) In re W.D., 10th Dist. No. 09AP-589, 2009-Ohio-6903, ¶ 34, quoting In re A.D., 10th Dist. No. 08AP-238, 2008-Ohio-3626, ¶ 8, quoting In re Hogle, 10th Dist. No. 99AP-944 (June 27, 2000).
The court shall require the guardian ad litem to faithfully discharge the guardian ad litem‘s duties and, upon the guardian ad litem‘s failure to faithfully discharge the guardian ad litem‘s duties, shall discharge the guardian ad litem and appoint another guardian ad litem. The court may fix the compensation for the service of the guardian ad litem, which compensation shall be paid from the treasury of the county, subject to rules adopted by the supreme court.
The guardian ad litem for an alleged or adjudicated abused, neglected, or dependent child shall perform whatever functions are necessary to protect the best interest of the child, including, but not limited to, investigation, mediation, monitoring court proceedings, and monitoring the services provided the child by the public children services agency or private child placing agency that has temporary or permanent custody of the child, and shall file any motions and other court papers that are in the best interest of the child in accordance with rules adopted by the supreme court.
{¶ 50} The Ohio Rules of Juvenile Procedure, which were recently amended effective July 1, 2020, provide that a juvenile court “shall appoint a guardian ad litem to protect the interests of a child * * * in a juvenile court proceeding when * * * [a]ny proceeding involves allegations of abuse, neglect, or dependency, voluntary surrender of permanent custody, or termination of parental rights as soon as possible after the commencement of such proceeding.” Juv.R. 4(B)(5).9
{¶ 51} Article IV, Section 5(A)(1) of the Ohio Constitution provides the Supreme Court of Ohio with general superintendence over all the courts in the state. In accordance with this authority, the Supreme Court originated the Rules of Superintendence for the Courts of Ohio, including the courts of common pleas and the divisions thereof. Sup.R. 1. See Arlington Bank v. Bee, Inc., 10th Dist. No. 10AP-41, 2010-Ohio-6040, ¶ 16; In re D.E., 10th Dist. No. 20AP-83, 2021-Ohio-524, ¶ 72. The Rules of Superintendence, which were
recently amended effective January 1, 2021,10 contain certain specified provisions that apply in domestic relations and juvenile court cases where the court appoints a GAL. See 2020 Sup.R. 48; 2021 Sup.R. 48.11
{¶ 52} The Rules of Superintendence provide a nonexhaustive list of duties that GALs are required to perform. 2021 Sup.R. 48.03(D), which was in effect when Herzberger prepared his final GAL report and testified at the permanent custody hearing, provided the following with respect to the duties of a GAL:
Unless specifically relieved by the court, the duties of a guardian ad litem shall include, but are not limited to, the following:
(1) Become informed about the facts of the case and contact all relevant persons;
(2) Observe the child with each parent, foster parent, guardian or physical custodian;
(3) Interview the child, if age and developmentally appropriate, where no parent, foster parent, guardian, or physical custodian is present;
(4) Visit the child at the residence or proposed residence of the child in accordance with any standards established by the court;
(5) Ascertain the wishes and concerns of the child;
(6) Interview the parties, foster parents, guardians, physical custodian, and other significant individuals who may have relevant knowledge regarding the issues of the case. The guardian ad litem may require each individual to be interviewed without the presence of others. Upon request of the individual, the attorney for the individual may be present.
(7) Interview relevant school personnel, medical and mental health providers, child protective services workers, and court personnel and obtain copies of relevant records;
(8) Review pleadings and other relevant court documents in the case;
(9) Obtain and review relevant criminal, civil, educational, mental health, medical, and administrative records pertaining to the child and, if appropriate, the family of the child or other parties in the case;
(10) Request that the court order psychological evaluations, mental health or substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court;
(11) Review any necessary information and interview other persons as necessary to make an informed recommendation regarding the best interest of the child.
(Emphasis added.) 2021 Sup.R. 48.03(D). 2020 Sup.R. 48(D) provided the following with respect to the duties of a GAL:
(13) A guardian ad litem shall make reasonable efforts to become informed about the facts of the case and to contact all parties. In order to provide the court with relevant information and an informed recommendation as to the child‘s best interest, a guardian ad litem shall, at a minimum, do the following, unless impracticable or inadvisable because of the age of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with each parent, foster parent, guardian or physical custodian and conduct at least one interview with the child where none of these individuals is present;
Judgment reversed
and cause remanded with instructions.
MENTEL, J., concurs.
LUPER SCHUSTER, P.J., dissents.
{¶ 79} Because I would affirm the judgment of the juvenile court granting FCCS‘s motion for permanent custody of A.S., I respectfully dissent.
{¶ 80} The majority finds the trial court committed plain error both in failing to discharge and replace the GAL and in admitting the testimony and report of the GAL. I agree with the majority that the GAL‘s investigation of the matter was deficient, but I nonetheless would not find this case to be the “rare circumstance” in which the GAL‘s deficiencies alone should result in reversal. In re D.E., 2021-Ohio-524, ¶ 92. Here, FCCS presented ample evidence that granting the motion for permanent custody was in the best interest of A.S., including competent, credible evidence that neither parent could adequately meet A.S.‘s basic and special needs. I would not find that any concerns with the thoroughness of the GAL‘s investigation detracted from the other evidence at trial. See In re D.E. at ¶ 92 (noting a juvenile court is not bound by a GAL‘s recommendation). Thus, I would find the GAL‘s conduct and the trial court‘s admission of the GAL‘s testimony and report did not affect the outcome of the trial. In re D.K., 10th Dist. No. 19AP-801, 2020-Ohio-5251, ¶ 40 (considering plain error in a civil case, including a permanent custody case, ” ‘[a]n error is prejudicial if it “impacted the party‘s ‘substantial
{¶ 81} In addition to finding that the granting of the permanent custody motion was in the best interest of A.S. and that the trial court did not plainly err with respect to the GAL, I would further find that J.S.‘s arguments about her trial counsel do not substantiate a claim of ineffective assistance of counsel, that the record supports the trial court‘s finding that A.S. could not be placed with P.H. within a reasonable time, and that the Supreme Court of Ohio‘s pandemic tolling order did not apply to the permanent custody hearing. Accordingly, I would overrule all four of J.S.‘s assignments of error and all three of P.H.‘s assignments of error, and I would affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
{¶ 82} For these reasons, I respectfully dissent.