IN THE MATTER OF: C.T.L.A.
Case No. 13CA24
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
Released: 04/08/14
[Cite as In re C.A., 2014-Ohio-1550.]
DECISION AND JUDGMENT ENTRY
Alisa Turner, Logan, Ohio, for Appellant.
Laina Fetherolf, Hocking County Prosecuting Attorney, and Ann Allen McDonough, Assistant Prosecuting Attorney, Logan, Ohio, for Appellee.
Larry E. Beal, Logan, Ohio, Guardian Ad Litem.
McFarland, J.
{¶1} Appellant, J.N., appeals the trial court‘s decision that awarded permanent custody of her biological child, C.T.L.A., to appellee, South Central Ohio Job and Family Services, formerly known as Hocking County Children Services. Appellant asserts that the trial court erred by failing to appoint the guardian ad litem as counsel for the child and by failing to appoint independent counsel for the child. However, appellant failed to object to either alleged error and, thus, we review these two errors for plain error. Because neither alleged error affected the outcome of the proceedings, appellant cannot show that the case at bar
{¶2} Appellant also contends that the guardian ad litem failed to comply with his duties and, thus, was ineffective. None of the guardian ad litem‘s alleged failures affected the outcome of the proceeding. Consequently, appellant cannot demonstrate that the guardian ad litem‘s alleged failures require us to reverse the trial court‘s judgment.
{¶3} Appellant next argues that some of the trial court‘s factual findings are against the manifest weight of the evidence. She asserts that the court failed to consider the child‘s wishes. However, the court did consider the child‘s wishes as expressed through the guardian ad litem. Furthermore, the court found that the child was not competent.
{¶4} Appellant additionally argues that the trial court‘s finding that the child needs a legally secure permanent placement that cannot be achieved without a grant of permanent custody is against the manifest weight of the evidence. The evidence shows that Appellant is unable to provide the child with a legally secure permanent placement. Appellee was unable to locate any other appropriate legally secure permanent placements for the child. Thus, the court‘s finding is not against the manifest weight of the evidence.
I. FACTS
{¶6} On November 2, 2011, the trial court placed the then one-year-old child in Appellee‘s temporary custody. On November 3, 2011, Appellee filed a complaint alleging that the child is an abused, neglected, and dependent child. On January 4, 2012, the court found the child to be a dependent child and placed the child in Appellee‘s temporary custody.
{¶7} On August 3, 2012, Appellant was incarcerated for committing burglary, and she is a registered sex offender. Her scheduled release date is in November 2015.
{¶8} On May 29, 2013, Appellee filed a permanent custody motion. Appellant subsequently filed a motion for visitation and requested the court to deny Appellee‘s request for permanent custody. Appellant requested the court to keep the child in foster care and to not tеrminate her parental rights so that she could seek custody of the child upon her release from prison.
{¶10} Appellant testified that when she is released from prison, she would like the opportunity to regain custody of her child but admitted that she would not want him placed with her immediately upon her release because she “would make sure that [she] was completely stable so [she] wouldn‘t fall apart again.”
{¶12} On October 31, 2013, the court granted Appellee permanent custody of the child. The trial court found that the child had been in Appellee‘s temporary custody since November 2, 2011 and that the child cannot be placed with either parent within a reasonable time because both parents are incarcerated. The court noted that Appellant has not visited or maintained contact with the child since being incarcerated in August 2012. The court observed that the guardian ad litem believed granting Appellee permanent custody would serve the child‘s best interests and determined that the child “is not competent to express his wishes.” The court further found that “[t]he child has not experienced secure placement with mother.” The court additionally found relevant the following factors specified in
II. ASSIGNMENTS OF ERROR
{¶13} Appellant timely appealed the trial court‘s judgment and raises three assignments of error:
First Assignment of Error:
The trial court erred by failing to appoint legal counsel to represent the minor child.
Second Assignment of Error:
The Guardian ad litem (GAL) rendered ineffective assistance by failing to file a written report pursuant to
Third Assignment of Error:
The trial court erred in interpreting and applying the factors of
III. ANALYSIS
A. FAILURE TO APPOINT COUNSEL
{¶13} In her first assignment of error, Appellant argues that the trial court violated the child‘s due process rights by failing to appoint the guardian ad litem as
{¶14} Because appellant did not request the trial court to appoint the guardian ad litem as counsel for the child, she forfeited her ability to claim error on appeal. E.g., State v. Clinkscale, 122 Ohio St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862, ¶ 31 (stating that a party must timely object to preserve error for appeal); Stores Realty Co. v. City of Cleveland, Bd. of Bldg. Standards and Bldg. Appeals, 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 appеal.“). However, we may recognize the alleged error if it constitutes plain error. E.g., Clinkscale at ¶ 31; Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus; In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 694 (1998). To find plain error, (1) there must be an error (i.e., a deviation from a legal rule), (2) the error must be obvious, and (3) the error must have affected the outcome of the trial. E.g., State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16.
{¶15} The plain error doctrine is not favored in civil cases, and thus, the Ohio Supreme Court has set forth a strict standard for finding plain error in civil cases:
“[R]eviewing courts should proceed with the utmost caution, limiting the doctrine strictly to those extremely rare where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material
adverse effect on the character of, and public confidence in, judicial proceedings.”
Goldfuss, 79 Ohio St.3d at 121; accord Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 43.
{¶16} In the case at bar, we do not believe that the trial court plainly erred by failing to appoint the guardian ad litem as counsel for the child, and even if it did, the case at bar is not one of those extremely rare cases that requires application of the plain error doctrine. Appellant has not set forth any prejudice that she suffered as a result of the trial court not appointing the guardian ad litem to serve in a dual capacity or explained what manifest miscarriage of justice occurred due to the lack of a dual appointment.
{¶17} We also do not believe that the trial court plainly erred by failing to appoint independent counsel for the child. “[A] child who is the subject of a juvenile court proceeding to terminate parental rights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances.” In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1100, syllabus, citing
{¶18} In the case at bar, nothing in the record indiсates that the child ever expressed any desire that conflicted with the guardian ad litem‘s recommendation. The child was under three years old at the time of the permanent custody hearing, and the trial court correctly determined that the child lacked competency to express his wishes. Appellant nevertheless appears to assert that the trial court should have presumed that the child wished to remain with Appellant because some evidence exists that the child was bonded to Appellant during the times when they visited each other. Even if Appellant‘s assertions that the child displayed affection for her and was bonded to her are true, simply because a child is bonded to a parent, misses a parent when a parent does not attend visitations, or even expects to bе returned to a parent does not mean that the child has “an affirmative desire to return to [the parent‘s] home and live with [the parent] on a permanent basis.” In re A.T., 9th Dist. Summit No. 23065, 2006-Ohio-3919, ¶ 61. “The desire to see one‘s parent does not equate to a desire to remain in the parent‘s household,” and “‘the presence of parent/child bonding is not the same thing as making a knowing choice to remain with one parent.‘” Id., quoting In re M.W., 8th Dist. Cuyahoga No. 83390, 2005-Ohio-1302, ¶ 12. Thus, even if the child‘s actions indicate parent-child bonding, those actions are not sufficient to demonstrate that the child desires
{¶19} Appellant nonetheless аrgues that “certain circumstances” necessitating independent counsel exist in this case because the guardian ad litem did not present evidence of the child‘s wishes, did not “assert an inability to determine” the child‘s wishes, and did not submit a written report. Appellant claims that under these circumstances, the guardian ad litem could not have effectively recommended what was in the child‘s best interests and thus, the child was entitled to independent counsel.
{¶20} Here, the guardian ad litem testified at the permanent custody hearing that awarding Appellee permanent custody would be in the child‘s best interest. He explained that awarding permanent custody to Appellee would provide the stability the child needs now, rather than waiting for Appellant to be released from prison in two years and then waiting for her to prove her ability to properly сare for the child.
{¶21} Moreover, as another court recognized, when a child is “unable to express a position regarding custody or to assist an attorney in pursuing a particular course of action,” an attorney would be able to advocate only what the attorney
{¶22} Accordingly, based upon the foregoing reasons, we overrule Appellant‘s first assignment of error.
B. INEFFECTIVE ASSISTANCE BY GUARDIAN AD LITEM
{¶23} In her second assignment of error, Appellant contends that the guardian ad litem rendered ineffective assistance by failing to file a written report and by failing to inform the court of the child‘s wishes. Appellant argues that the guardian ad litem failed to comply with
{¶25} The purpose of a guardian ad litem “is to protect the interest of the child and ‘assist a court in its determination of a child‘s best interest.‘” In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 14, quoting Sup.R. 48(B)(1) and citing
{¶26}
{¶27} Sup.R. 48(D) outlines the minimum duties that a guardian ad litem shall perform “unless impracticable or inadvisable to do so.” According to the rule, the guardian ad litem shall (1) represent the best interest of the child for whom the guardian is appointed, (2) maintain independence, objectivity and fairness as well as the appearance of fairness in dealings with parties and professionals, both in and out of the courtroom аnd shall have no ex parte communications with the court regarding the merits of the case, (3) appear and participate in any hearing for which the duties of a guardian ad litem or any issues
{¶28} “In order to provide the court with relevant information and an informed recommendation as to the child‘s best interest,” Sup.R. 48(D)(13) requires the guardian ad litem to perform the following minimum duties “unless impracticable or inadvisable because of the age of the child or the specific circumstances of a particular case:”
- Meet with and interview the child and observe the child with each parent, foster parent, guardian or physiсal custodian and conduct at least one interview with the child where none of these individuals is present;
- Visit the child at his or her residence in accordance with any standards established by the court in which the guardian ad litem is appointed;
- Ascertain the wishes of the child;
- Meet with and interview the parties, foster parents and other significant individuals who may have relevant knowledge regarding the issues of the case;
- Review pleadings and other relevant court documents in the case in which the guardian ad litem is appointed;
- Review criminal, civil, educational and administrative records pertaining to the child and, if appropriate, to the child‘s family or to other parties in the case;
- Interview school personnel, medical and mental health providers, child protective services workers and relevant court personnel and obtain copies of relevant records;
- Recommend that the court order psychological evaluations, mental health and/or substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court; and
- Perform any other investigation necessary to make an informed recommendation regarding the best interest of the child.
{¶30} Additionally, even if the guardian ad litem did not comply with the
{¶31} Furthermore, Appellant cannot demonstrate that any error relating to the guardian ad litem‘s failure to advise the court of the child‘s wishes affected the outcome of the proceedings. All parties were well-aware that the child was barely three years old as of the October 17, 2013 permanent custody hearing. The trial court specifically determined that the child was not competent to state his wishes, and we have previously recognized that “interviews with children of tender years will generally yield information of very little or no benefit.” J.C. at ¶ 14. Thus, even if the guardian ad litem had bеen able to ascertain the young child‘s wishes and had advised the trial court of the child‘s wishes, the trial court most likely would have given little or no weight to the child‘s wishes due to its incompetency determination.
{¶32} Accordingly, based upon the foregoing reasons, we overrule Appellant‘s second assignment of error.
C. R.C. 2151.414(D) AND (E)
1. Standard of Review
{¶34} 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 R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
“‘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, оn 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 v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black‘s Law Dictionary 1594 (6th ed.1990).
{¶35} 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, 78 Ohio St.3d 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. No. 20894, 2002-Ohio-2208, 2002 WL 987852, ¶¶ 23-24.
{¶36} The essential question that we must resolve when reviewing a permanent custody decision under the manifest weight of the evidence standard is “whеther 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:
“The 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, 103-04, 495 N.E.2d 23 (1986).
{¶37} 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 sаtisfaction 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.“); In re Adoption of
{¶ 38} 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, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reviewing court should find a trial court‘s permanent custody decision against the manifest weight of the evidence only in the “exceptional case in which the evidence weighs heavily against the [decision].” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717; accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
{¶ 39} Additionally, deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well (Emphasis sic).” Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). Accord In re Christian, 4th Dist. No. 04CA 10, 2004–Ohio–3146, 2004 WL 1367399, ¶ 7. As the Ohio Supreme Court long-ago explained: “In proceedings involving the custody and welfare of children the power of the trial court to exercise discretiоn is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by printed record.” Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
2. Permanent Custody Principles
{¶ 40} 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. 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 pole star 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. D.A. at ¶ 11.
{¶ 41} 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 * * *;
* * *
(B) To achieve the foregoing purpose[ ], whenever possible, in a family environment, separating the child from its parents only when necessary for his welfare or in the interests of public safety.
3. Permanent Custody Framework
{¶ 42}
(a) The child is not abandoned or orphaned 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 ending on or after March 18, 1999, 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 ending on or after March 18, 1999.
{¶ 43} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circumstances described in
{¶ 44} In the case at bar, appellant does not challenge the trial court‘s
4. Best Interest
{¶ 45}
{¶ 46} Here, Appellant challenges the trial court‘s lack of findings regarding the child‘s wishes and its finding regarding the child‘s need for a legally secure permanent placement.
a. Child‘s Wishes
{¶ 47}
{¶ 48} In the case at bar, the trial court considered the child‘s wishes as expressed through the guardian ad litem. Moreover, the court found that the child was not competent to express his wishes. Thus, although the court did not consider
b. Legally Secure Permanent Placement
{¶ 49}
{¶ 50} The child has been in Appellee‘s temporary custody since he was one year old, and at the time of the permanent custody hearing, he was almost three years old. During the two years in between, Appellant was unable to provide the child with a legally secure permanent placement, mainly due to her criminal conduct and incarceration. At the time of the permanent custody hearing, Appellant‘s expected prison release date was November 2015. Thus, Appellant would not be able to provide the child with a legally secure permanent placement for at least two years following the date of the permanent custody hearing. Even
” * * * [A] child should not have to endure the inevitable to its great detriment and harm in order to give the * * * [parеnt] an opportunity to prove her suitability. To anticipate the future, however, is at most, a difficult basis for a judicial determination. The child‘s present condition and environment is the subject for decision not the expected or anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * * The law does not require the court to experiment with the child‘s welfare to see if he will suffer great detriment or harm.”
{¶ 51} Moreover, while a court that is considering a permanent custody motion possesses the discretion to award legal custody to either parent or to any other person whо files a motion requesting legal custody,
c. R.C. 2151.414(E)
{¶ 52} Appellant also argues that the trial court‘s findings under
[t]he parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more times or refused to participate in further treatment two or more times after a case plan issued pursuant to section 2151.412 of the Revised Code requiring treatment of the parent was journalized as part of a
dispositional order issued with respect to the child or an order was issued by any other court requiring treatment of the parent.
{¶ 53}
(15) The parent has committed abuse as dеscribed in section 2151.031 of the Revised Code against the child or caused or allowed the child to suffer neglect as described in section 2151.03 of the Revised Code, and the court determines that the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the child‘s placement with the child‘s parent a threat to the child‘s safety.
{¶ 54} Appellant asserts that the court‘s finding that
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment and Opinion as to Assignments of Error I and III; Concurs in Judgment Only as to Assignment of Error II.
For the Court,
BY: ________________________________
Matthew W. McFarland, 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.