In Re Hilyard
{¶ 1} James Hilyard is the father of ten children for whom he and Michelle Hilyard, the children‘s mother, lost their parental rights in a neglect/dependency proceeding. Mr. Hilyard appeals the court‘s decision terminating his parental rights and granting permanent custody of the children to the Vinton County Department of Job and Family Services (“VCDJFS“).
{¶ 2} First, Mr. Hilyard asserts the trial court erred by relying upon hearsay contained in the guardian ad litem‘s report. We agree the trial court erred to the extent it considered the hearsay but conclude this was harmless error in light of the court‘s minimal consideration of that evidence and the existence of other admissible evidence in the record.
{¶ 3} Next, the father contends the trial court erred in failing to appoint separate counsel and a guardian ad litem for the children. Because there is no evidence that the dual representation resulted in an actual or apparent conflict, we conclude the court did not err in appointing a licensed attorney to serve as both guardian ad litem and legal counsel for the children.
{¶ 4} Finally, Mr. Hilyard argues the trial court erred in granting legal custody of the children to VCDJFS rather than to Judy Sledd or Christine Garvin, the children‘s paternal grandmother and paternal aunt, respectively, who were available to accept legal custody of the children. Because the record provides ample support for the trial court‘s findings that neither relative was suitable for placement and that it was in the children‘s best interest for VCDJFS to assume permanent custody over them, we affirm the trial court‘s judgment.
I. FACTUAL BACKGROUND
{¶ 5} In June 2003, VCDJFS filed separate complaints alleging neglect and dependency concerning each of the ten Hilyard children, who then ranged in age from nine months to 12 years old. The court removed the children from their parents’ home, which was determined to be not fit for habitation, and placed them in the temporary custody of VCDJFS. Ms. Sledd was residing in the Hilyard‘s home when conditions there required removal of the children. The court appointed attorneys to represent the children‘s father and mother, and appointed Sandra Brandon, a licensed attorney, as guardian ad litem for all the children.
{¶ 6} In September 2003, an adjudication hearing occurred on the neglect and dependency allegations. The children‘s parents and their counsel, the guardian ad litem, and Ms. Sledd were all present.
{¶ 7} The court entered an order of adjudication and found by clear and convincing evidence: all ten of the children were dependent children under R.C.
{¶ 8} In November 2003, both parents were arrested and charged with the rapes of two of their children. That same month, Ms. Sledd filed a pro se motion for custody of all ten children, together with an affidavit of indigency requesting counsel; she received appointed counsel a week later. By agreement of the parties and with the court‘s permission, VCDJFS set up supervised visitation for one to two hours a month between Sledd and the children.
{¶ 9} At the annual review hearing held in May 2004, Ms. Garvin also filed a motion for legal custody together with an affidavit of indigency requesting court-appointed counsel. At the hearing, the court ordered appointed counsel for Garvin and a home study on Garvin‘s and Sledd‘s residences for possible placement of the children.
{¶ 10} In July 2004, VCDJFS filed a motion requesting permanent custody of each of the ten children. At a hearing held in September 2004, the court explained the rights and potential consequences associated with a permanency hearing. Those present at the hearing included the children‘s father, mother, Garvin, Sledd, and their respective appointed counsel.
{¶ 11} In October and November 2004, the children‘s father and mother were both convicted of two counts of sexual battery under R.C
{¶ 12} By a November 2004 order, the court appointed Brandon, who was the children‘s guardian ad litem, to also serve as the children‘s attorney. The guardian ad litem reviewed agency records and met with both parents, the children, Sledd, Garvin and her family, other family members, and the children‘s foster parents. The guardian ad litem prepared reports in September 2003 and December 2004 detailing her investigation and recommendations. In her December 2004 report and in her testimony at the permanent custody hearing held in March 2005, Brandon opined that neither Sledd nor Garvin was a suitable relative placement; instead she recommended that permanent custody of all of the children be granted to VCDJFS. No party or other attorney in the case objected to Brandon‘s dual representation until the permanent custody hearing.
{¶ 13} In May 2005, the court found by clear and convincing evidence that the children‘s best interest would be served by granting permanent custody to VCDJFS. Specifically, under R.C.
{¶ 14} Concerning the best interests of the children, the court found under R.C.
II. ASSIGNMENTS OF ERROR
{¶ 15} In his appeal, Mr. Hilyard raises the following assignments of error:
1. The trial court erred in relying upon the report of the guardian ad litem to the extent that the contents of the report were hearsay.
2. The trial court erred in failing to appoint separate counsel for each of the ten Hilyard children.
3. The trial court erred in not separating the function of attorney for the children from that of guardian ad litem.
4. The trial court violated James Hilyard‘s right to procedural due process under both the Ohio and United States Constitutions.
5. The trial court erred in refusing to require Children Services to effect relative placements, violating appellant James Hilyard‘s substantive rights pursuant to the Ohio and United States Constitutions.
III. LEGAL STANDARD GOVERNING PERMANENT CUSTODY DECISIONS AND OUR REVIEW
A. Burden of Proof
{¶ 16} An award of permanent custody must be based upon clear and convincing evidence. R.C.
B. Standard of Review
{¶ 17} Even under the clear and convincing standard, our review is deferential. If the trial court‘s judgment is supported by some competent, credible evidence going to all the essential elements of the case, an appellate court must affirm the judgment and not substitute its judgment for that of the trial court. In re Myers III, Athens App. No. 03CA23, 2004-Ohio-657, ¶ 7, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 74. The credibility of witnesses and weight of the evidence are issues primarily for the trial court, as the trier of fact. In re Ohler, Hocking App. No. 04CA8, 2005-Ohio-1583, ¶ 15, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.
C. Parental Rights and Children‘s Best Interest
{¶ 18} A parent‘s right to raise his or her child is an “essential” and “basic civil right.” In re Murray (1990), 52 Ohio St.3d 155, 157, quoting Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551. A parent‘s rights, however, are not absolute. While termination of parental rights is an alternative of last resort, it is authorized when necessary for the welfare of the child. In re Cunningham (1979), 59 Ohio St.2d 100, 105; In re Wise (1994), 96 Ohio App.3d 619, 624. “[T]he 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, quoting In re R.J.C. (Fla.App. 1974), 300 So.2d 54, 58.
D. The Agency‘s and Court‘s Responsibility
{¶ 19} R.C.
{¶ 20} R.C.
{¶ 21} R.C.
IV. CONSIDERATION OF GUARDIAN AD LITEM REPORT
{¶ 22} Prior to the permanent custody hearing, VCDJFS submitted the guardian ad litem‘s December 2004 report, which recommended that all ten Hilyard children be placed in the permanent custody of the agency. Counsel for the children‘s father, mother, and paternal grandmother and aunt objected to the court‘s consideration of the report on the ground that it contained hearsay. In his first assignment of error, James Hilyard pursues his objection to the hearsay contained in the guardian ad litem‘s report, arguing it was inadmissible under Evid.R. 802 and should not have been considered by the trial court in making its permanent custody decision regarding the children.
{¶ 23} R.C.
{¶ 24} Juv.R. 34(B)(2) allows the use of hearsay evidence at most dispositional hearings. But it specifically acknowledges the requirements of Juv.R. 34(I) that the Rules of Evidence “shall apply” in hearings on motions for permanent custody. See, In re Mack, 148 Ohio App.3d 626, 629-30, 2002-Ohio-4161.
{¶ 25} Moreover, both the Guardian Ad Litem Standards Task Force, the Supreme Court of Ohio, March 28, 2002 Report and the Report and Recommendations of the Advisory Committee on Children, Families and the Courts, Supreme Court of Ohio, Office of Judicial and Court Services, December 2005 Report and Recommendations are consistent with this position. The Guardian Ad Litem Standards Task Force recommended that the report not be considered by the court as substantive proof of the merits of the motion for permanent custody. See Recommendation Eleven. Likewise, the Advisory Committee report recommended that the report shall not be considered as substantive proof of the need for termination of parental rights. See Recommendation Eleven.
{¶ 26} Both committees focus on the purpose of the guardian ad litem report as being to advise the court of the activities and investigation of the guardian ad litem to allow the court to determine whether the guardian ad litem is fulfilling its duty to the child and the court. Both Committees strongly caution against using the guardian ad litem‘s report as substantive evidence going to the merits of the motion for permanent custody.
{¶ 27} Thus, we conclude to the extent that the court admitted the guardian ad litem‘s report and considered it as substantive evidence, it erred. However, this does not end our analysis, as we still must determine whether this error was prejudicial. See In re Mack, supra at 630. We conclude appellant was not unfairly prejudiced by the trial court‘s consideration of the guardian ad litem report.
{¶ 28} The trial court‘s only reference to the guardian ad litem report is in its findings of fact under R.C.
{¶ 29} Our review of the trial court‘s reference in its judgment to the guardian ad litem report reveals that it was minimal in nature. To the extent the court considered the report concerning the wishes of the children, this error was harmless because the court‘s ultimate conclusion that termination of parental rights was necessary finds abundant support in other admissible evidence. See In re Mack, supra at 633-34. We discern no prejudice to James Hilyard in the court‘s fleeting references to the guardian ad litem report in reaching its conclusion. Thus, we overrule appellant‘s first assignment of error.
V. APPOINTMENT OF LEGAL COUNSEL AND GUARDIAN AD LITEM
{¶ 30} James Hilyard‘s second and third assignments of error are related, asserting the trial court erred in permitting one person to serve as both guardian ad litem and legal counsel for all ten children because the children had “potentially differing interests” with each other. Mr. Hilyard does not identify the “potentially differing interests.”
{¶ 31} As previously noted, the trial court appointed Sandra Brandon, a licensed attorney, as the guardian ad litem for all ten Hilyard children and subsequently appointed Brandon in a separate entry to also serve as legal counsel for them. The trial court directed Brandon to notify it within 14 days of her appointment as the children‘s attorney if she believed there was any conflict of interest in her dual representation.
{¶ 32} Attorney Brandon did not notify the court she believed there might be a potential conflict of interest. Brandon did advise the court, however, that Angela had expressed an interest at one time in living with a family member, Ms. Sledd, her grandmother. The court inquired into Angela‘s expressed wishes, and Brandon further advised the court that Angela was not serious about it and was more concerned about staying in contact with her siblings.
{¶ 33} Brandon stated her belief that no conflict in interest existed in her serving as the children‘s guardian ad litem and attorney, and the court agreed. Notably, Brandon was also subject to full cross-examination by the parties regarding her investigation of the case.
{¶ 34} R.C.
{¶ 35} As recognized in Juv.R. 4(C)(1), the roles of guardian ad litem and attorney are not always compatible, as they serve different functions. In re Baby Girl Baxter (1985), 17 Ohio St.3d 229, 232; Emery, supra. “The role of guardian ad litem is to investigate the ward‘s situation and then to ask the court to do what the guardian feels is in the child‘s best interest. The role of the attorney is to zealously represent his client within the bounds of the law.” Id. Thus, a conflict between the roles may arise when a child‘s wishes differ from what the guardian ad litem believes is in the child‘s best interests. In that event, the attorney must bring potential conflicts to the attention of the court, and where he or she fails to do so, the court may be obliged to act sua sponte. See In re Howard (1997), 119 Ohio App.3d 201, 206. A new guardian ad litem should be appointed if either the court or the attorney finds there is a conflict. R.C.
{¶ 36} 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, ¶ 17. 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, ¶ 17; In re Brooks, supra 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.
{¶ 37} Here, unlike the circumstances in Williams, the record does not reflect that Angela or any of the other Hilyard children “consistently and repeatedly” expressed a strong desire or had interests that were inconsistent with the recommendations of the guardian ad litem. Cf. In re Smith (1991), 77 Ohio App.3d 1. Upon being advised by the guardian ad litem that one of the children had at one time expressed in interest in living with Ms. Sledd, the court appropriately made inquiry and was advised that the child was not serious and was more concerned about staying in contact with her siblings. No contrary evidence was adduced. Cf. In re Emery (remanding for further proceedings because the trial court did not inquire further upon being advised that one of the children‘s desires regarding custody may not have been consistent with the guardian ad litem‘s recommendation).
{¶ 38} Because appellant has failed to demonstrate either an apparent or actual conflict in the guardian ad litem‘s dual representation as attorney for the children, we conclude the trial court did not err in allowing one person to serve as both legal counsel and guardian ad litem for the children. Thus, we overrule appellant‘s second and third assignments of error.
VI. DUE PROCESS
{¶ 39} In his fourth assignment of error, James Hilyard contends the trial court denied him fundamental fairness and deprived him of procedural due process of law by committing or failing to prevent the “errors” raised in his first three assignments of error. Because his claims of denial of due process are predicated on assignments of error we have overruled as without merit, we overrule appellant‘s fourth assignment of error.
VII. PLACEMENT OF CHILDREN WITH RELATIVES
{¶ 40} In his fifth assignment of error, James Hilyard asserts the trial court failed to properly apply R.C.
{¶ 41} A court considering a custody motion in a dispositional hearing possesses discretion to award legal custody to either parent or to any other person who files a proper motion requesting legal custody. See R.C.
{¶ 42} The willingness of a relative to care for a child does not alter the statutory factors to be considered in granting permanent custody. In re Keaton; In re Dyal; In re Jefferson (Oct. 25, 2000), Summit App. No. 20092. The child‘s best interests are served by the child being placed in a permanent situation that fosters growth, stability, and security. In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324. Accordingly, a court is not required to favor a relative if, after considering all the factors, it is in the child‘s best interest for the agency to be granted permanent custody. In re Keaton; In re P.P., Montgomery App. No. 19582, 2003-Ohio-1051.
{¶ 43} The trial court is vested with discretion to determine what placement option is in the child‘s best interest, and the court‘s exercise of that discretion should be accorded the utmost respect. In re Keaton; In re Dyal; In re Patterson, supra. See, e.g., Davis v. Flickinger (1997), 77 Ohio St.3d 415. Therefore, an appellate court will not overturn a trial court‘s custody decision unless the trial court has acted in a manner that can be characterized as arbitrary, unreasonable or capricious. In re Dyal, supra, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
A. Application of R.C. 2151.412(G)
{¶ 44} R.C.
B. Evidence Concerning Sledd
{¶ 45} Three separate home studies were conducted on Ms. Sledd — one by the Franklin County Department of Job and Family Services (“FCDJFS“) and two by VCDJFS during the subject proceedings. A FCDJFS caseworker testified that Sledd was the subject of investigation in 1995 when she was the primary caretaker of a niece and the niece‘s infant son; the agency found her to be noncompliant and frequently could not be found at addresses she provided. The caseworker testified that Sledd hid the baby in a pile of clothes in a basement when the agency attempted to remove the baby from her care. The baby was very dirty and had cradle cap on his scalp and red marks on his chin. The agency removed the niece and baby from Sledd‘s care.
{¶ 46} The record indicates Sledd continued to move frequently and did not maintain a stable residence. The latest of two home studies by VCDJFS in this case indicated that her home was small with four people already living there. Her visits with the children were described as chaotic, with her lacking control over the children. During one visit, she promised gifts to the children if they would chose to live with her. Some of the children were reported as having nightmares after visitation with her. Perhaps most notably, she failed to protect the children from the incidents of abuse and neglect alleged in the complaint, which she admits occurred while she was a member of the Hilyard household.
C. Evidence Concerning Garvin
{¶ 47} Ms. Garvin did not file a motion for custody of the children until May 26, 2004, almost a year after VCDJVS assumed temporary custody of the children and had placed the children in foster care. VCDJFS conducted a study of Garvin‘s home for possible relative placement and set up visitation for her with the Hilyard children.
{¶ 48} Garvin testified at the permanent custody hearing about why she should be awarded legal custody of the children. She testified she was 32 years old and was married with four children: two children from her current marriage, and two sons from prior relationships. Garvin acknowledged that she had allowed her oldest son to live with her mother, Sledd, almost since birth and made little or no attempt to make sure that his needs, particularly his educational needs, were being met. Garvin admitted that sometimes she did not even have an address or phone number to reach her son or Ms. Sledd.
{¶ 49} Garvin testified that she earns annually approximately $25,000 as a bus driver. Her husband, who is unable to work due to seizures, earns no income but has applied for social security disability income. The home study conducted on Garvin showed that she lives in a small, nice three-bedroom home in a good area but that the home would be very crowded if the five people already living in the home were joined by ten more children. Garvin testified that if she were granted legal custody of the children she and her husband would remodel her home or possibly buy a larger home to accommodate the children.
{¶ 50} Garvin admitted that she had only seen the children two times since 1998 and was now a stranger to several of the children. She testified that she did not believe that her brother, the Hilyard children‘s father, committed the acts of sexual battery for which he was convicted.
{¶ 51} The record clearly indicates that VCDJFS and the trial court considered Sledd and Garvin as placement options for the Hilyard children but concluded neither was suitable and should not be granted legal custody of the children. The record supports this conclusion. Because competent and credible evidence supports the trial court‘s determination that it is in the best interests of the children that permanent custody of them be granted to VCDJFS, we overrule appellant‘s fifth assignment of error.
VIII. CONCLUSION
{¶ 52} Having overruled all of James Hilyard‘s assignments of error, we affirm the judgment of the trial court granting permanent custody of the children to VCDJFS.
Judgment affirmed.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of Appellant 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 Vinton County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.