In re B.K.
Amy R. Ashcraft, 240 East State Street, Trenton, Ohio 45067, for appellant, A.K.
T. Randall Turnеr, 27 Church Street, Monroe, Ohio 45050, for D.K.
Adolfo Olivas, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, guardian ad litem
O P I N I O N
RINGLAND, J.
{¶1} Appellant, Angela K. (Mother), appeals from the decision of the Butler County Court of Common Pleas, Juvenile Division, granting legal custody of her two minor children, B.K. and C.K., tо their paternal-grandfather, Greg K., and his wife, Diana K. (Grandparents). For the reasons outlined below, we affirm.
{¶3} On March 13, 2009, Children Services filed a motion for temporary custody requesting the trial court to grant Mother temporary custody of the children after finding “there [were] no active safety concerns that would prohibit [the children] from being safely returned to [Mother‘s] temporary custody.” The trial court subsequently granted Children Services’ motion on March 16, 2009.
{¶4} On October 2, 2009, Children Services filed a motion requesting the trial court to terminate Mother‘s temporary custody and return the childrеn to Grandparents after learning Mother had violated the trial court‘s September 1, 2009 order prohibiting Father from “enter[ing] any residence wherein mother and the children are residing.” According to an affidavit submitted by Children Services in support of its motion, Father, who, has since been incarcerated on charges of burglary and theft, “resumed living with [Mother] and the children, against the order of the court” following a “recent relapse.” The trial court once again granted Grandparents temporary custody of the children.
{¶5} On December 10, 2009, Children Services filed a motion for legal custody requesting the trial court to grant Grandparents legal custody of the children. Following a three-day dispositional hearing before a magistrate that ultimately concluded оn June 16, 2010, during which the magistrate denied Mother‘s motion to appoint a new guardian ad
{¶6} Mother now appeals from the trial court‘s decision overruling her objections to the magistrate‘s decision granting legal custody of the children to Grandparents, raising three assignments of error for review.
{¶7} Assignment of Error No. 1:
{¶8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING LEGAL CUSTODY TO [GRANDPARENTS].”
{¶9} In her first assignment of error, Mother argues that the trial court erred by overruling her objections to the magistrate‘s decision granting legal custody of the children to Grandparents as such finding “is not supported by the manifest weight of the evidence.” We disagree.
{¶10} Aftеr a child is adjudicated abused, neglected, or dependent, such as the case here, the trial court may award legal custody to a nonparent upon a demonstration by a preponderance of the evidence that granting legаl custody to the nonparent is in the child‘s best interest.
{¶11} In order to determine the best interest of a child,
{¶12} In general, apрellate review of custody cases is limited to whether the trial court abused its discretion. C.D. v. D.L., Fayette App. No. CA2006-09-037, 2007-Ohio-2559, ¶14; In re Brown (2001), 142 Ohio App.3d 193, 198. An abuse of discretion implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. “The discretion which a trial court enjoys in custody mattеrs should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.” In re J.M., Warren App. No. CA2008-12-148, 2009-Ohio-4824, ¶17, quoting Miller v. Miller (1988), 37 Ohio St.3d 71, 74.
{¶13} In this case, the record indicates that B.K. and C.K., both of whom were interviewed by the trial court, were placed in the temporary custody of Grandparents from January 12, 2009 to March 16, 2009, and again on October 2, 2009. During this time, the
{¶14} On the other hand, the record indicates that although Mother tries to discipline the children appropriately, these attempts, while showcasing some improvement, are generally unavailing and merely lead to the childrеn exhibiting overtly aggressive behavior towards her, as well as towards each other. Furthermore, while the children have certainly bonded to her, the record indicates that Mother‘s attendance at her scheduled visitation has been, at best, sporаdic, and that she has failed to pay any court-ordered child support to Grandparents. In addition, while Mother seems to have little difficulty in securing full-time employment, as the trial court found, and for which we certainly agree, Mother has engaged in “erratic job-hopping patterns” by failing to maintain such employment for any significant period of time. The record also indicates that Mother has not satisfactorily completed her case plan, has experienced a significant period of residential instability, including a period of homelessness, suffers from mental health issues for which she does not take her prescribed medications, and, despite his recent incarceration and prior battles with drug addiction, continues to maintain neаrly constant contact with Father.
{¶16} Assignment of Error No. 2:
{¶17} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY OVERRULING THE MOTION TO GRANT A NEW GUARDIAN AD LITEM AND BY NOT SEPARATING THE ROLES OF GUARDIAN AD LITEM AND ATTORNEY FOR THE CHILDREN DUE TO A POTENTIAL CONFLICT OF INTERESTS.”
{¶18} In her second assignment of error, Mother argues that the trial court erred by overruling her objection to the magistrate‘s decision denying her motion to apрoint the children with a new guardian ad litem “after a potential conflict arose between the wishes of the children and the guardian‘s recommendation.” We disagree.
{¶19} Generally, when an attorney is appointed as guardian ad litem, as is the case here, “that attorney may also act as counsel for the child, absent a conflict of interest.” In re Holt, Franklin App. No. 03AP-355, 2003-Ohio-5580, ¶20. In other words, because the guardian ad litem is permitted to maintain dual roles in a custody dispute, “a court is not required to appoint sepаrate counsel unless the [guardian ad litem‘s] recommendations regarding their best interest conflict with the children‘s wishes.” In re J.M., 2009-Ohio-4824
{¶20} After a thorough review of the record, we find no error in the trial court‘s decision overruling mother‘s motion to appoint a new guardian ad litem for the children. Here, while it may be true that the children‘s court-appointed special advocate indicated the children had expressed some desire to live with their mother, there is no indication that they expressed this desirе consistently and repeatedly. Moreover, despite numerous opportunities to do so, it is clear that the children never expressed that same desire to their guardian ad litem. In fact, as the guardian ad litem specifically stated, “[the childrеn] have been consistent in liking where they are, enjoying where they are,” that they “have been consistent in being happy with their placement” with Grandparents, and that, although they have told him they “want to see their mother,” he “would have been quite concerned had they not wanted to.” In turn, based on the facts and circumstances of this case, it simply cannot be said that the children have consistently and repeatedly expressed a strong desire that differed from their guardian ad litem. Therefore, having fоund no conflict of interest existed that would have necessitated the appointment of a new guardian ad litem, we find the trial
{¶21} Assignment of Error No. 3:
{¶22} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING LEGAL CUSTODY, WITHOUT THE REQUIREMENT THAT THE GUARDIAN AD LITEM FILE A FINAL REPORT.”
{¶23} In her third assignment of error, Mother аrgues that the trial court erred by overruling her objection to the magistrate‘s decision “by not requiring the guardian ad litem to file a final report with written recommendations” prior to the dispositional hearing pursuant to
{¶24} Judgment affirmed.