IN THE MATTER OF: [D.N.], Adjudicated Dependent Child.
Case No: 11CA3203
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
File-stamped date: 9-09-11
[Cite as In re D.N., 2011-Ohio-4627.]
Kline, J.
Robert W. Bright, Story Law Office, Pomeroy, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Judith Heimerl Brown, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Kline, J.:
{¶1} D.N.’s father (hereinafter the “Father”) appeals the judgment of the Ross County Court of Common Pleas, Juvenile Division, which granted permanent custody of D.N. to Ross County Job and Family Services, Children’s Division (hereinafter “Children Services”). For various reasons, Father contends that the trial court erred in granting Children Services’ motion for permanent custody. But except for plain error, Father has waived all but one of his permanent-custody arguments. In the sole argument that Father has not waived, we find that competent, credible evidence supports the trial court’s decision. Furthermore, we cannot find plain error in any of Father’s remaining permanent-custody arguments.
{¶3} Accordingly, we overrule Father’s two assignments of error and affirm the judgment of the trial court.
I.
{¶4} This is the second time we have reviewed this matter. We affirmed the trial court’s termination of D.N.’s mother’s parental rights in In re D.N., Ross App. No. 11CA3213, 2011-Ohio-3395.
{¶5} D.N. was born on November 22, 1995. After being removed from his parents’ home in 2005, D.N. was placed in the legal custody of relatives. In early 2007, D.N.’s relatives informed the juvenile court that they could no longer care for D.N. Children Services then filed a complaint alleging that D.N. was a dependent child.
{¶6} On July 5, 2007, the juvenile court appointed the same person to serve as both guardian ad litem and legal counsel for D.N. Then, on October 24, 2007, the juvenile court (1) adjudicated D.N. to be dependent and (2) placed D.N. in the temporary custody of his paternal cousins.
{¶7} D.N. remained in his paternal cousins’ temporary custody until April 2008. Then, in an April 7, 2008 entry, the juvenile court granted temporary custody of D.N. to Children Services.
{¶9} Children Services investigated eight of D.N.’s relatives as potential placement options. For various reasons, however, Children Services was not able to place D.N. with any of these relatives. D.N.’s older brother (hereinafter the “Brother”) was one of the relatives investigated by Children Services. But as D.N.’s caseworker later testified, Brother (1) failed two home studies, (2) had financial stability issues, (3) had frequent involvement with law enforcement, and (4) had a positive drug screen. As a result, Children Services did not approve Brother as a placement option for D.N.
{¶10} On April 28, 2009, Children Services filed a motion for permanent custody under
{¶11} On September 20, 2010, the juvenile court held a hearing before a magistrate. D.N.’s caseworker testified on behalf of Children Services. Father, Brother, Brother’s girlfriend, and D.N.’s mother also testified. At the close of the hearing, Father’s attorney asked the court “to deny the state’s motion for permanent custody.”
{¶12} On October 1, 2010, the magistrate filed an order that terminated Father’s and D.N.’s mother’s parental rights. D.N.’s mother filed her objections to the magistrate’s decision on November 2, 2010, and Father filed his objections on November 8, 2010. But on October 12, 2010, D.N.’s mother also filed a motion for findings of fact and conclusions of law. The magistrate responded by entering findings of fact and conclusions of law on November 23, 2010. As a result, the trial court granted both Father and D.N.’s mother until December 28, 2010, to file amended objections to the magistrate’s findings of fact and conclusions of law. D.N.’s mother filed her amended objections on December 28, 2010, but Father did not file any amended objections. Therefore, Father’s November 8, 2010 filing represents Father’s only objections to the magistrate’s decision.
{¶13} Despite Father’s and D.N.’s mother’s objections, the juvenile court adopted “the order of the Magistrate as the Order of the Court.” January 14, 2011 Judgment Entry at 4. As a result, Father’s and D.N.’s mother’s parental rights were terminated, and D.N. was placed in the permanent custody of Children Services.
{¶14} (In his appellate brief, Father has added a “current update to the case[.]” Brief of Appellant at 7. Essentially, Father discusses information that is not in the record before us. We have not, however, considered any of this information because our “review is necessarily limited to the record on appeal.” In re J.C., 186 Ohio App.3d 243, 2010-Ohio-637, at ¶15.)
II.
{¶16} In his first assignment of error, Father contends that the trial court erred in granting permanent custody of D.N. to Children Services.
A.
{¶17} A parent’s “interest in the care, custody, and control of [his or her] children ‘is perhaps the oldest of the fundamental liberty interests[.]’” In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, at ¶8, citing Troxel v. Granville (2000), 530 U.S. 57, 65. Further, “[p]ermanent termination of parental rights has been described as the family law equivalent of the death penalty in a criminal case.” In re D.A., 2007-Ohio-1105, at ¶10 (internal quotations omitted). As such, “parents must be afforded every procedural and substantive protection the law allows.” Id. (internal quotations omitted). “‘[I]t is plain that the natural rights of a parent are not absolute, but are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.’” In re Cunningham (1979), 59 Ohio St.2d 100, 106, quoting In re R.J.C. (Fla.App. 1974), 300 So.2d 54, 58.
{¶18} “A public or private child-placement agency may file a motion under
{¶20} We will not reverse the judgment of the trial court when some competent, credible evidence supports the trial court’s findings. In re Marano, Athens App. No. 04CA30, 2004-Ohio-6826, at ¶12. Accordingly, we must determine if competent, credible evidence supports the trial court’s findings regarding both the best interest of the child and the requirements of
B.
{¶21} First, we must address whether Father has waived the arguments under his first assignment of error. “The juvenile rules require written objections to a magistrate’s decision to be filed within 14 days of the decision.
{¶22} Father has raised four arguments under his first assignment of error: (1) the trial court erred by not placing D.N. with a suitable relative; (2) the trial court did not consider D.N.’s wishes concerning placement; (3) Children Services did not use its best efforts to avoid a judgment of permanent custody; and (4) the trial court erred by not placing D.N. in a planned permanent living arrangement.
{¶23} Father, however, raised only one of these arguments with specificity in his objections to the magistrate’s decision. In the November 23, 2010 findings of fact and conclusions of law, the magistrate found that “[t]here are no appropriate and willing relatives to care for the child.” Magistrate’s Decision at 1. And in the proceedings below, Father filed the following objection: “[T]estimony clear[ly] shows that there exist possible family placement alternatives. The very strong bond with the Father, brothers and nephews must outweigh the state’s position in permanently severing the biological bond.” Objections to Magistrate’s Decision at 2. This is the only objection in the proceedings below that specifically coincides with Father’s arguments on appeal. Therefore, we will use the competent-credible-evidence standard to review Father’s
{¶24} “In appeals of civil cases, the plain error doctrine is not favored and may be applied only in 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 process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997-Ohio-401, syllabus.
1.
{¶25} Initially, we will consider Father’s argument that the trial court erred by “not placing Child with a suitable relative[.]” Brief of Appellant at 8. On appeal, this particular issue contains both new arguments and arguments that Father raised in his objections to the magistrate’s decision. Therefore, we will review the following argument under the competent-credible-evidence standard: that the trial court should have placed D.N. with Brother. And we will analyze the following argument for plain error only: that Children Services did not make reasonable efforts to place D.N. with a relative.
a. Placing D.N. With Brother
{¶26} Father contends that the trial court should have placed D.N. with a suitable relative. And for that reason, Father argues that the trial court committed reversible error. (In his appellate brief, Father does not refer to a particular suitable relative. We will, however, presume that Father is referring to Brother based on (1) the request made at the September 20, 2010 hearing and (2) Father’s objections to the magistrate’s
b. Reasonable Efforts to Place D.N. With a Suitable Relative
{¶27} Father contends that Children Services did not make reasonable efforts to place D.N. with a relative. And for that reason, Father argues that the trial court committed reversible error. We recently rejected a similar argument in In re M.O., Ross App. No. 10CA3189, 2011-Ohio-2011. As we observed, “Contrary to Mother’s contention, a public children services agency has no statutory duty to make ‘reasonable efforts’ to place the child with an extended family member before it can obtain permanent custody of the child.” Id. at ¶16. See, also, In re Warren, Stark App. No.2007CA00054, 2007-Ohio-5703, at ¶23 (“[T]he Department’s duty to use reasonable efforts applies only to efforts to avoid removal of a child from her home or to reunify the child with her family, following removal. The Department is under no statutory duty to make reasonable efforts to place a child with relatives although relative placement is to be investigated.”). Therefore, we find no plain error in Father’s reasonable-efforts argument.
2.
{¶29} Under
{¶30} Here, we find evidence of D.N.’s wishes in the record below. First, D.N.’s caseworker testified that D.N. “never expressed an interest” in living with Father. Transcript at 45. Furthermore, we find evidence of D.N.’s wishes in the guardian ad litem’s report. The guardian ad litem reported that he “spoke with [D.N.] and confirmed that he has little attachment to either parent. Whatever bonding [D.N.] may have once had with either of them is simply not there anymore due to the parents pursuing other avenues, including substance abuse, left untreated, and related criminal conduct which has put them behind bars for substantial periods of time.” Report of Guardian Ad Litem at 2. In our view, this lack of bonding or attachment is evidence of D.N.’s wishes concerning (1) Father’s parental rights and (2) the motion for permanent custody.
{¶31} We also presume that the juvenile court considered D.N.’s wishes when it granted permanent custody of D.N. to Children Services. We recognize that neither the magistrate nor the juvenile court made an express finding regarding D.N.’s wishes.
3.
{¶32} In another argument under his first assignment of error, Father contends that Children Services did not “use its best efforts to avoid a judgment of permanent custody[.]” Brief of Appellant at 8. Essentially, Father argues that Children Services did not make reasonable efforts to avoid the permanent-custody action. We, however, find no plain error under this argument.
{¶33} “Pursuant to
{¶34} For the foregoing reasons, we find no plain error under Father’s reasonable-efforts argument.
4.
{¶35} In the remaining argument under his first assignment of error, Father contends that the trial court erred by “not placing Child in a Planned Permanent Living Arrangement[.]” Brief of Appellant at 8. We, however, find no plain error under this argument.
{¶36} “If a child is adjudicated an abused, neglected, or dependent child, the court may * * * [p]lace the child in a planned permanent living arrangement with a public children services agency or private child placing agency, if a public children services agency or private child placing agency requests the court to place the child in a planned permanent living arrangement and if the court finds, by clear and convincing evidence, that a planned permanent living arrangement is in the best interest of the child and that one of the following exists:
{¶37} “(a) The child, because of physical, mental, or psychological problems or needs, is unable to function in a family-like setting and must remain in residential or institutional care now and for the foreseeable future beyond the date of the dispositional hearing held pursuant to
{¶38} “(b) The parents of the child have significant physical, mental, or psychological problems and are unable to care for the child because of those problems,
{¶39} “(c) The child is sixteen years of age or older, has been counseled on the permanent placement options available to the child, is unwilling to accept or unable to adapt to a permanent placement, and is in an agency program preparing the child for independent living.”
{¶40} Here, there is no evidence that D.N. qualifies for a planned permanent living arrangement. First, according to the evidence, D.N. does not have “physical, mental, or psychological problems or needs” that would cause him to be “unable to function in a family-like setting.”
C.
{¶41} For the foregoing reasons, we overrule Father’s first assignment of error.
III.
{¶42} In his second assignment of error, Father contends that D.N. was deprived of his right to independent counsel. In the proceedings below, D.N.’s guardian ad litem
{¶43} This court addressed a similar argument in In re Hilyard, Vinton App. Nos. 05CA600, 05CA601, 05CA602, 05CA603, 05CA604, 05CA606, 05CA607, 05CA608, & 05CA609, 2006-Ohio-1965. The following quote from Hilyard discusses the legal principles relevant to Father’s second assignment of error.
{¶44} “
{¶45} “As recognized in
{¶46} “The Ohio Supreme Court has concluded that a child who is the subject of a juvenile court proceeding to terminate parental rights is entitled to independent counsel in certain circumstances. In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, syllabus. A court’s determination whether a child actually needs independent counsel should be made on a case-by-case basis, taking into account the maturity of the child and the possibility of the child’s guardian ad litem being appointed to represent the child. In re Williams, at ¶17; In re Brooks, Franklin App. No. 04AP-164, 2004-Ohio-3887, at ¶¶79, 87. Generally, the appointment of independent counsel is warranted when a child has ‘repeatedly expressed a desire’ to remain or be reunited with a parent but the child’s guardian ad litem believes it is in the child’s best interest that permanent custody of the child be granted to the state. Id.” Hilyard at ¶34-36 (footnotes omitted) (emphasis sic).
{¶48} Here, because D.N. did not express a desire to remain or be reunited with his parents, we cannot find plain error related to Father’s second assignment of error. As we noted earlier, the guardian ad litem reported that D.N. “has little attachment to either parent.” Furthermore, according to D.N.’s caseworker, D.N. “never expressed an interest” in living with Father and “didn’t wish to talk” to his mother. Transcript at 22, 45. Therefore, the evidence does not demonstrate a conflict between D.N.’s wishes and the guardian ad litem’s recommendation, and we cannot find plain error related to the independent-counsel issue.
{¶49} Accordingly, we overrule Father’s second assignment of error. Having overruled both assignments of error, we affirm the judgment of the trial court.
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 Ross County Court of Common Pleas, 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. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, 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.