IN RE: C.O., ET AL.
Nos. 99334 and 99335
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 27, 2013
[Cite as In re C.O., 2013-Ohio-5239.]
KEOUGH, J., STEWART, A.J., and E.T. GALLAGHER, J.
Minor Children
[Appeal By Mother]
JUDGMENT: AFFIRMED
Civil Appeals from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 12914245 and AD 12914246
BEFORE: Keough, J., Stewart, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 27, 2013
Brian S. Schick
1516 Sunview Road
Lyndhurst, Ohio 44124
ATTORNEYS FOR APPELLEES
Patrick J. O‘Malley
6200 Rockside Woods North
Suite 204
Independence, Ohio 44131
ATTORNEY FOR MINOR CHILDREN
Martin Keenan
Buckeye Legal Center
11510 Buckeye Road
Cleveland, Ohio 44101
GUARDIAN AD LITEM
Mary Bush
9373 King‘s Hollow Court
Mentor, Ohio 44060
FOR CUYAHOGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES
Yvonne C. Billingsley
Cuyahoga County Department of Children and Family Services
3955 Euclid Avenue, Room 305E
Cleveland, Ohio 44115
{1} Appellant, Vicki O‘Malley (“Mother“), mother and as next friend of her minor children, P.O. and C.O., appeals the trial court‘s decision dismissing her children‘s complaint that requested a finding of neglect under
{2} On August 28, 2012, P.O. and C.O. (hereinafter “children“), through counsel, filed a complaint for dependency and neglect and requested that temporary custody be granted to the Cuyahoga County Department of Children and Family Services (“CCDCFS“) or in the alternative, legal custody to their mother. The complaint was filed approximately one month after the children were informed that the domestic relations court had granted custody to their father, Patrick O‘Malley (“Father“). The basis for the complaint was that the children threatened to harm themselves if they were removed from their mother‘s custody and placed in the custody of their father. Attached to the complaint was an affidavit signed by Mother alleging that Father had failed to enroll the children in school and “sign his children in treatment.” The complaint and affidavit requested that the children remain with Mother or that they be placed in the temporary custody of CCDCFS until their best interests could be determined.
{4} Mother appeals, raising five assignments of error, which will be addressed together where appropriate.
Procedural Due Process
{5} In her first assignment of error, Mother contends that the trial court erred by denying the children procedural due process because (1) the children were not given an opportunity to present evidence at the hearing; (2) the guardian ad litem‘s report was fundamentally inadequate because the guardian ad litem failed to interview the children in the presence of either parent and failed to visit Father‘s home; and (3) the trial court failed to conduct an in camera interview with the children.
{6} The right to procedural due process is required by the
{7} Contrary to Mother‘s argument, the children, by and through their attorney, were given an opportunity to be heard at the hearing. Their counsel presented their case through testimony and evidence at the hearing, attempting to satisfy their burden of proving that they were dependent and neglected children. Accordingly, their procedural due process rights were not violated.
{8} Moreover, we find unpersuasive Mother‘s argument that the children‘s due process rights were further violated because the guardian ad litem‘s report and investigation were fundamentally inadequate; thus preventing the children from placing their evidence on the record. Mother confuses the roles of the guardian ad litem and the children‘s attorney.
{9} “The roles of guardian ad litem and attorney are different.” In re Janie M., 131 Ohio App.3d 637, 639, 723 N.E.2d 191 (6th Dist.1999). The role of the guardian ad litem is to “assist a court in its determination of a child‘s best interest” by providing the court with relevant information and “an informed recommendation” about the children‘s best interest. Sypherd v. Sypherd, 9th Dist. Summit No. 25815, 2012-Ohio-2615, ¶ 11, citing Sup.R. 48; see also In re Baby Girl Baxter, 17 Ohio St.3d 229, 232, 479 N.E.2d 257 (1985).
{11} Finally, the trial court‘s failure to conduct an in camera interview with the children did not violate their due process rights because, as will be discussed under Mother‘s third assignment of error, the interview would only become relevant in making a best interests determination for disposition. Because the trial court found that an adjudication of neglect or dependency was not proper, a best interests determination was unnecessary.
{12} Therefore, the children were not denied their right to procedural due process and Mother‘s first assignment of error is overruled.
Guardian Ad Litem Report
{13} In her second assignment of error, Mother contends that the trial court committed plain error by accepting and relying on the report of the guardian ad litem because the guardian ad litem did not perform her duties pursuant to the minimum standards set forth in Sup.R. 48(D)(13).
{15} None of the parties objected to the guardian ad litem‘s report. Accordingly, this assignment of error is reviewed only for plain error. The doctrine of plain error is limited to those rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and if the error is left uncorrected, it would have a materially adverse effect on the character of, and public confidence in, judicial proceedings. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-401, 679 N.E.2d 1099.
{16} Mother contends that the guardian ad litem did not perform her duties pursuant to the minimum standards set forth in Sup.R. 48(D)(13) because the guardian ad
{17} In support of her argument, Mother cites to Nolan v. Nolan, 4th Dist. Scioto No. 11CA3444, 2012-Ohio-3736. In Nolan, father objected to mother‘s request to terminate the shared parenting plan and to designate her as the child‘s residential parent. The trial court appointed a guardian ad litem to conduct an investigation and prepare a report regarding the child‘s best interest. The evidence demonstrated that the guardian ad litem conducted a limited investigation and failed to conduct interviews with the key individuals in the case, including the child, mother‘s live-in boyfriend, the child‘s half-sister, school personnel, and medical-health providers. Furthermore, the guardian ad litem did not visit the homes of either mother or father. Nevertheless, the guardian ad litem testified and recommended that it would be in the child‘s best interest to terminate the shared parenting plan and designate mother as residential custodian. Based on the guardian ad litem‘s recommendation, the trial court granted mother‘s request.
{18} Father appealed, arguing that the guardian ad litem‘s investigation should have been stricken because the investigation was below the minimum standards set forth in Sup.R. 48. The Fourth District agreed and reversed the trial court‘s decision, stating that while the Rules of Superintendence are general guidelines for a guardian ad litem to follow and “do not have the force of law,” Sup.R. 48 should not be ignored. Id. at ¶¶ 26-27. The court determined that based on the unique facts of the case, the guardian ad
{19} Mother‘s reliance on Nolan is misplaced. First, and most importantly, the Nolan decision was fact specific. Id. at ¶¶ 26-27. Second, in this case, the trial court did not rely on the guardian ad litem‘s report to make a best interest determination because no such determination was necessary based on the children‘s inability to satisfy their burden that they were neglected or dependent. These factors alone make Nolan distinguishable.
{20} Furthermore, the trial court‘s written opinion references the guardian ad litem‘s report for the limited purpose of stating “that the children are progressing in counseling and adjusting to their Father‘s home. This demonstrates that the steps Father is taking in connection with the children‘s therapy is having a positive effect on their mental health.” This statement corroborates the testimony at the hearing that Father was addressing the children‘s mental health needs, which was contrary to the allegation in the complaint for dependency and neglect.
{21} Finally, the trial court noted that the guardian ad litem‘s report was “pretty thorough given the turn around time that the [guardian ad litem] had to provide it to the court.” We agree. Based on the facts and circumstances of the case, the guardian ad litem‘s report was within the guidelines of Sup.R. 48 and the trial court‘s limited reliance on the report was not plain error.
In Camera Interview
{23}
In determining the child‘s best interest for the purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issue related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation. (Emphasis added.)
{24} In this case, the attorneys for both Mother and the children moved the court to conduct an in camera interview with the children. The trial judge denied the motion, but stated she would reconsider the motion based on the evidence and testimony presented during the course of the hearing. At the close of evidence, a renewed motion for an in camera interview with the children was made. Although the trial court did not expressly deny the motion, the court did not interview the children prior to dismissing the complaint for neglect and/or dependency. In her third assignment of error, Mother contends that the court committed reversible error in failing to conduct an in camera interview to consider the children‘s wishes.
{25} When a trial court proceeds on an original neglect, dependency, or abuse complaint under
{26} Accordingly, an in camera interview pursuant to
{27} Mother‘s third assignment of error is overruled.
Adjudication
{29}
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, 104, 495 N.E.2d 23 (1986).
{30} When an appellate court examines whether a trial court‘s judgment is based 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). If the trial court‘s judgment is “supported by some competent, credible evidence going to all the essential elements of the case,” a reviewing court may not reverse that judgment. Id. Furthermore, “an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusion of law.” Id. Moreover, deferring to the trial court on matters of credibility is “crucial” in cases involving children, “where there may be much
{31} To determine whether a child is neglected or dependent, the date on which neglect or dependency “existed must be alleged in the complaint, and the trial court must determine that the circumstance(s) which support a finding of dependency [or neglect] existed as of the date or dates alleged in the complaint.” In re Barnhart, 4th Dist. Athens No. 02CA20, 2002-Ohio-6023, ¶ 35, citing In re Rowland, 2d Dist. Montgomery No. 18429, 2001 Ohio App. LEXIS 462 (Feb. 9, 2001); see also
{32} In this case, the children requested a finding of neglect pursuant to
{33} The underlying basis for the complaint was that the children were threatening to harm themselves if they were placed in the custody of their Father. The affidavit attached to the complaint alleged that Father had failed to enroll the children in school and that he failed to adequately address the children‘s mental health issues.
{35} The record also supports the trial court‘s decision dismissing the complaint on the basis that the children did not prove they were dependent as defined under the law.
{36} The children requested a finding of dependency pursuant to
{37} Mother argues on appeal that the trial court erred in not finding the children dependent because (1) Father‘s mental health has an adverse impact on the children and their environment, and (2) the domestic relations judgment entry ordering Father to have 24-hour security camera surveillance in his house and a third party companion when he is with the children violate the children‘s right to privacy and have an adverse impact on their environment. These issues were not raised in the complaint as a basis for a finding of dependency; therefore, they are summarily rejected. Kleinfeld v. Huntington Natl. Bank, 8th Dist. Cuyahoga No. 90916, 2008-Ohio-6486, ¶ 37, citing State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 1997-Ohio-71, 679 N.E.2d 706 (a party cannot raise new arguments for the first time on appeal).
{38} The record before this court shows that this complaint was merely a vehicle in an attempt to circumvent the domestic relations division order granting custody of the children to Father. Although the children reacted negatively to the news that custody was granted to Father, their actions and reactions do not rise to the level of neglect or dependency as defined under the law. “A neglect/dependency complaint should not be filed as a substitute for a custody action.” In re Riddle, 79 Ohio St.3d 259, 265, 1997-Ohio-391, 680 N.E.2d 1227; see also In re Reese, 4 Ohio App.3d 59, 62, 446
{39} Accordingly, there is competent and credible evidence in the record supporting the trial court‘s decision that the children did not withstand their burden of proof in the matter. The trial court did not err in dismissing the amended complaint for dependency and neglect filed by the children. Mother‘s fourth and fifth assignments of error are overruled.
{40} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, A.J., and EILEEN T. GALLAGHER, J., CONCUR