IN THE MATTER OF: B.E., Adjudicated Abused/ Neglected/ Dependent Child.
Case No. 13CA26
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
RELEASED 07/14/2014
[Cite as In re B.E., 2014-Ohio-3178.]
Hoover, J.
Susan M. Zurface Daniels, Peterson Law Offices, Wilmington, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee.
Hoover, J.
{1} Appellant, Beth Elkins, appeals the trial court‘s judgment that awarded appellee, Highland County Department of Job and Family Services (fka Highland County Children Services), permanent custody of her two-year-old child. Appellant first argues that the trial court erred by failing to appoint a guardian ad litem to protect appellant‘s interests during the juvenile court proceedings. Because appellant fails to show that the appointment of a guardian ad litem would have altered the outcome of the permanent custody proceedings, appellant cannot show that she suffered any prejudice due to the lack of a guardian ad litem. Thus, appellant‘s first assignment of error is without merit.
{2} Appellant next asserts that the trial court‘s finding that she abandoned the child is against the manifest weight of the evidence. Because the trial court found that the child had been in appellee‘s temporary custody for more than twelve out of the past twenty-two months, it did
I. FACTS
{3} On March 16, 2012, when the child was barely two months old, the child‘s father took her to the hospital with a large bruise on her face. The father stated that he slapped the child because she would not stop crying. The court subsequently adjudicated the child dependent and placed the child in appellee‘s temporary custody. Appellee placed the child in a foster home, and the child has remained in that same home throughout the proceedings.
{4} On August 12, 2013, appellee filed a motion to modify the disposition to permanent custody. In it, appellee stated that appellant, who is developmentally disabled, has attended only twenty-four out of fifty-five available visits and that she has not had any contact with the child since June 1, 2013. Appellee alleged that appellant engaged in services with Help Me Grow during her visits with the child, but “[s]everal concerns were noted regarding [appellant]‘s growth under direction of the providers.”
{5} At the permanent custody hearing, caseworker Tonya Farley explained that appellant‘s case plan required her to (1) comply with the Board of Developmental Disabilities’ recommendations so that appellant could become independent; (2) work with the Help Me Grow program to learn how to take care of the child; (3) obtain stable housing; and (4) be able to provide for the child‘s basic needs. Farley stated that appellant ceased contact with the “Help Me Grow” program on May 31, 2013 and did not resume contact until shortly before the permanent custody hearing.
{6} Farley explained that appellant moved to Columbus earlier in 2013 to live with her husband‘s aunt, Sharon Scouler,1 who also is the payee of appellant‘s Supplemental Security Income. Farley stated that when appellant moved to Columbus, appellant experienced difficulties having a provider assigned to her. “They would make some progress in identifying a provider and be close to getting one signed on to be able to help her with services, and then she reported that she fired that particular provider, and has only recently signed a new provider on.”
{7} Farley stated that appellant “has always made an effort to provide things for the child” and that appellant has provided items such as clothing, toys, and diaper wipes. Farley testified that appellant brought food for the child, but it was not “always appropriate.” Farley further explained that even though appellant brought items for the child, it “wasn‘t gender appropriate; it wasn‘t age appropriate; or weather appropriate. Sometimes the toys that she provided [were] not age appropriate; and the food that she provided was expired.”
{8} Farley stated that she attended the November 7, 2013 visit between appellant and the child and described it as “very difficult.” Farley explained that the foster mother stayed for the first forty minutes of the visit and that when the foster mother left, the child started crying and tried to get out of the baby gate. Farley testified that the child “was screaming, and pretty much inconsolable for most of the visit.” Farley stated that after approximately an hour and fifteen minutes, “[the child] had screamed and screamed herself to sleep, basically, and she slept for about a-half-an-hour.” Farley explained that the child resumed screaming and crying during the last 15 minutes of the visit and that the foster mother had to help console the child. Farley stated that “[i]t was not an easy visit for anyone.”
{9} Farley further testified that appellant “needed to be prompted to change [the child‘s] diaper; and then she needed some hands-on instruction and demonstration in changing her diaper, about how to clean her, and how to put the diaper under her and get it situated so that the diaper was on properly.” Farley stated that during the visit, appellant mainly “sat on the floor” and “was not really very engaged with the baby at all [and] needed to be prompted to play with her.” Farley explained that the child “was just not real receptive to interacting with [appellant].” Farley testified that when the visit ended, appellant leaned in to kiss the child, which caused the child to scream.
{10} Toya Alexander testified that she has been appellant‘s Franklin County MRDD/DODD provider since October 30, 2013. Alexander explained that she helps appellant Mondays through Saturdays, eight hours per day, with personal care and transportation. Alexander testified that appellant recently looked for a new place to live, but stated that appellant “would have to have supervision” and that she would need someone with her twenty-four hours per day, if she were to have the child in her care.
{11} Appellant testified and her attorney asked questions about Sharon Scouler. Appellant explained that Scouler controls the money appellant receives from Social Security. Appellant stated that she has to do what Scouler tells her to do. Appellant also stated that Scouler told her that if appellant visited the child in Highland County, appellant would be arrested. Appellant testified that Scouler would tell appellant what to tell her attorney when the attorney called her on the telephone. Appellant explained that she is considering a new apartment and would be supervised seven days per week. However, on cross-examination, appellant stated that Scouler will receive joint custody of the child with which she was pregnant
{12} During closing arguments, appellant‘s attorney argued that Scouler hindered appellant‘s progress on the case plan. Appellant‘s attorney requested the court to give appellant a little more time to work on the case plan and a chance to remove herself from Scouler‘s influence. The guardian ad litem echoed appellant‘s attorney‘s concerns regarding Scouler‘s influence: “I do very much believe that [appellant] has been under the influence of Mrs. [Scouler], and that‘s been very detrimental to [appellant]‘s progress.” The guardian ad litem continued: “However, * * * she was made aware that that was a problem; that she needed to leave Ms. [Scouler]‘s home, or do something about that situation; and has not done that to this point.” The guardian ad litem asserted that the child is “very, very bonded” with the foster family and believes it would be “very detrimental” to the child if she were returned to appellant.
{13} On November 12, 2013, the trial court granted appellee permanent custody of the child. The court determined that
The court next considered the best interest factors and explained:
“The Court finds [the child] currently has a very poor relationship with her mother. During the November 7, 2013 visit the child did not want to be present with her mother and the mother made no effort to engage with [the child] choosing instead to entertain herself with a toy. The mother was unable to change a diaper without help. Out of a possible 73 visits * * * the mother attended only 25. * * * *
[The child] has bonded with her foster family and calls her foster parents mom and dad. Her interaction and interrelationship with the foster family is very positive. Her foster parents are willing and hopeful to adopt [the child] which is not possible without granting the pending motion. The Court finds [the child] is in need of a legally secure placement. * * * * The Court finds both parents have failed to substantially comply with their case plan objectives. Neither parent has suitable housing for the child due to others that reside with them. * * * * The mother needs constant care for herself and is unable to care for her child. The Court finds as this case nears the two year anniversary neither parent has shown an ability or desire to reunify with their daughter. Last minute efforts by parents are not unusual but in this case not compelling enough to convince the Court allowing additional time to either parent to reunify would make any difference. Adequate opportunity was afforded each parent to reunify and both chose not to exercise the same.”
{14} The court thus terminated appellant‘s parental rights and awarded appellee permanent custody of the child.
II. ASSIGNMENTS OF ERROR
{15} Appellant raises two assignments of error.
First Assignment of Error:
The trial court erred by failing to appoint a guardian ad litem for the mother in violation of
Second Assignment of Error:
The trial court‘s finding that the mother abandoned B.E. as defined in
III. ANALYSIS
A. GUARDIAN AD LITEM
{17} Because appellant did not object, we may reverse the trial court‘s decision only if the failure to appoint a guardian ad litem constituted plain error. E.g., Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975) (“Ordinarily, errors which arise during the course of a trial, which are not brought to the attention of the court by objection or otherwise, are waived and may not be raised upon appeal.“); In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 694 (1st Dist.1998) (explaining that an appellate court may recognize an error that an appellant waived only if it constitutes plain error). Courts should exercise extreme caution when invoking the plain error doctrine, especially in civil cases. Thus, “the doctrine is sharply limited to the ‘extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial
{18} ”
{20} In the case at bar, even if appellant was entitled to a guardian ad litem, appellant cannot demonstrate that the failure to appoint a guardian ad litem affected the outcome of the proceedings. Appellant‘s counsel “safeguarded her rights and interests by actively participating in the court proceedings, drawing the court‘s attention to the positive aspects of appellant‘s life
{21} Moreover, appellant‘s counsel brought to the court‘s attention the alleged subterfuge Scouler caused. Thus, appellant‘s counsel brought to the court‘s attention the facts appellant alleges a guardian ad litem would have discovered. As such, the trial court was well-aware of Scouler‘s alleged subterfuge. In fact, the trial court even noted its concerns that appellant may have unwittingly permitted Scouler to control appellant‘s life. Consequently, a guardian ad litem‘s presentation of this same evidence would have been cumulative. Therefore, appellant did not suffer any prejudice due to the lack of a guardian ad litem who could have presented evidence regarding Scouler‘s alleged subterfuge. See In re K.J.D., 10th Dist. Franklin Nos. 12AP-652 and 12AP-653, 2013-Ohio-610, ¶ 54 (explaining that guardian ad litem‘s failure to present certain evidence is not prejudicial when another party introduces that same evidence).
{22} To the extent appellant asserts that a guardian ad litem may have brought Scouler‘s alleged subterfuge to the court‘s attention at a time when corrective action could have occurred, appellant has failed to show that continuing to comply with her case plan and visiting the child would have affected the outcome of the proceedings. Instead, the record shows that even before appellant stopped visiting the child and terminated her services with the Board of
“no longer have housing of their own. They have consistently had difficulties managing money which has caused problems with them being able to maintain a household. [The father] is reportedly living in a drug environment and has started using alcohol again. He does not have income sufficient to maintain a household of his own. [The mother] has sufficient income but does not have the ability to manage her funds appropriately. She frequently makes decisions for herself against the advice of people who are charged with assisting in her best interest.”
The case review further noted that there were only two visits with the child in December and January, and none were completed in February. Thus, despite appellant‘s speculation that a guardian ad litem could have taken corrective action to stop the alleged subterfuge that purportedly caused appellant to miss visits with the child between June 1, 2013 and November 6, 2013, appellee‘s administrative review and case plan show that appellant did not attend all of her visits with the child even before June 1, 2013, when the alleged subterfuge supposedly began. The administrative review and case plan further indicate that appellee intended to pursue permanent custody before June 1, 2013. Consequently, had a guardian ad litem brought the alleged subterfuge to the trial court‘s attention at a time when corrective action may have been possible, appellant cannot show that earlier corrective action would have changed the outcome of the proceedings.
{23} Additionally, although appellant claims that a guardian ad litem would have ensured that appellant attended visitations and engaged in Help Me Grow services, she does not
{24} Furthermore, although appellant claims that the appointment of a guardian ad litem would have been beneficial in this case, a guardian ad litem may not always advocate “for reunification and may believe the ward‘s wishes do not align with [the ward‘s] best interests.” K.J.D., 2013-Ohio-610 at ¶ 51. Here, it is pure speculation to state that a guardian ad litem appointed for appellant would have recommended that the trial court deny appellee permanent custody.
{25} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
B. ABANDONED
{26} The text of appellant‘s second assignment of error suggests that appellant argues that sufficient evidence does not support the trial court‘s finding that she abandoned the child. However, the body of appellant‘s second assignment of error focuses on the weight of the evidence—not on its adequacy—supporting the court‘s abandonment finding. Thus, we believe that the manifest weight standard of review is the appropriate standard of review applicable to appellant‘s second assignment of error. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus (explaining that the concepts “‘legal sufficiency‘” and “‘manifest weight‘” are “‘both quantitatively and qualitatively different‘“).
1. Standard of Review
{27} A reviewing court generally will not disturb a trial court‘s permanent custody decision unless the decision is against the manifest weight of the evidence. In re M.H., 4th Dist. Vinton No. 11CA683, 2011-Ohio-5140, ¶ 29; In re A.S., 4th Dist. Athens Nos. 10CA16, 10CA17, 10CA18, 2010-Ohio-4873, ¶ 7.
“‘Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.“‘”
Eastley at ¶ 12, quoting Thompkins at 387, quoting Black‘s Law Dictionary 1594 (6th ed.1990).
{28} When an appellate court reviews whether a trial court‘s permanent custody decision is against the manifest weight of the evidence, the court “‘“weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.”‘” Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶¶ 23-24.
{29} In a permanent custody case, the ultimate question for a reviewing court is “whether the juvenile court‘s findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. “Clear and convincing evidence” is: “[T]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986). In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). Accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) (“Once the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.“). “Thus, if the children services agency presented competent and credible evidence upon which the trier of fact reasonably could have formed a firm belief that permanent custody is warranted, then the court‘s decision is not against the manifest weight of the evidence.” (Citations omitted.) In re R.M., Ohio App.3d -, 2013-Ohio-3588, 997 N.E.2d 169, ¶ 55 (4th Dist.).
{30} Once the reviewing court finishes its examination, the court may reverse the judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.‘” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
{31} Furthermore, when reviewing evidence under the manifest weight of the evidence standard, an appellate court generally must defer to the fact-finder‘s credibility determinations. As the Eastley court explained:
“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * * If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jur.3d, Appellate Review, § 60, at 191-192 (1978).
2. Permanent Custody Principles
{32} A parent has a “fundamental liberty interest” in the care, custody, and management of his or her child and an “essential” and “basic civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829. A parent‘s rights, however, are not absolute. In re D.A. at ¶ 11. Rather, “‘it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.‘” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974). Thus, the state may terminate parental rights when a child‘s best interest demands such termination. In re D.A. at ¶ 11.
{33} Before a court may award a children services agency permanent custody of a child,
(A) To provide for the care, protection, and mental and physical development of children * * * whenever possible, in a family environment, separating the child from the child‘s parents only when necessary for the child‘s welfare or in the interests of public safety;
(B) To provide judicial procedures through which Chapters 2151. and 2152. of the Revised Code are executed and enforced, and in which the parties are assured of a fair hearing, and their constitutional and other legal rights are recognized and enforced.
3. Permanent Custody Framework
{34}
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents. (b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) 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, or 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 and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state.
{35} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in
{36} In the case at bar, appellant does not challenge the trial court‘s best interest finding. Therefore, we do not address it. Instead, appellant argues that the evidence fails to show that the she abandoned her child.
{37}
{38} Here, the trial court determined that
{39} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error.
IV. CONCLUSION
{40} Based upon the foregoing reasons, we overrule appellant‘s two assignments of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & McFarland, J.: Concur in Judgment and Opinion.
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.