2006 Ohio 1977 | Ohio Ct. App. | 2006
{¶ 2} First, Ms. Sledd asserts that the trial court erred in failing to join her as a party to the initial complaint and proceeding on VCDJFS' motion for permanent custody without providing her requisite notice of the proceedings. We conclude the trial court did not err because Ms. Sledd was not a necessary party to the proceedings, and because she had adequate, actual notice of them.
{¶ 3} Next, she contends the trial court erred in finding it was not in the best interests of the children to grant custody of them to her or the children's aunt. However, the record provides ample support for the trial court's findings that neither Ms. Sledd nor the paternal aunt were suitable for placement and that it was in the children's best interest for VCDJFS to assume legal custody over them.
{¶ 4} Third, Sledd argues 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.
{¶ 5} Next, Sledd claims 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.
{¶ 6} Finally, she asserts the trial court erred in failing to obtain sufficient evidence of the children's wishes. She essentially waived this issue by withdrawing a motion for the court to interview the children regarding their wishes. Moreover, the record contains sufficient evidence from which the court could determine the children's wishes. Because competent, credible evidence exists to support the trial court's judgment in that regard, we affirm.
{¶ 8} 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 appellant were all present.
{¶ 9} 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.
{¶ 10} In November 2003, both parents were arrested and charged with the rapes of two of their children. That same month, 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.
{¶ 11} At the annual review hearing held in May 2004, Christine Garvin, the children's paternal aunt, 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.
{¶ 12} 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.
{¶ 13} In October and November 2004, the children's father and mother were both convicted of two counts of sexual battery under R.C
{¶ 14} 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.
{¶ 15} 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.
{¶ 16} Concerning the best interests of the children, the court found under R.C.
1. The trial court erred in not joining Judy Sledd as a party to the initial complaint for the reason that she resided in the child's home at the time of the complaint under R.C.
2. The trial court erred to the prejudice of appellant in proceeding on appellee Vinton County Department of Job and Family Service's Motion for permanency when appellant had not been afforded her due process rights in service of process and in personam jurisdiction therein.
3. The trial court erred by not finding that it was in the best interests of the children that they be placed with Judy Sledd or other suitable relative placement, at the shelter care proceeding, dispositional hearing, and during the best interest phase of the trial on the VCDJFS permanency motion.
4. The trial court erred in failing to appoint an attorney in addition to a guardian ad litem to represent the interests of the children in violation of their rights.
5. The trial court erred to the prejudice of appellant by admitting and relying upon the guardian ad litem reports that contained clear hearsay information.
6. Further, the prejudice to appellant of the admission of the GAL report and its underlying hearsay reports included references to psychological examinations performed upon the appellant to which no waiver of the physician-patient privilege was obtained.
7. The trial court erred to the prejudice of appellant by not obtaining evidence of the children's wishes in a permanency proceeding and by not requiring the guardian ad litem to report on the children's wishes or present evidence of the children's wishes other than through the guardian's reports, a hearsay document. Therefore, the court's findings on best interests is against the weight of the evidence.
{¶ 22} R.C.
{¶ 23} R.C.
In effect, they assert she was a necessary party to the proceedings for purposes of receiving notice of VCDJFS' complaint and its subsequent motion for permanent custody of the Hilyard children because she was a member of the Hilyard children's household at the time the dependency-neglect complaint was filed. Sledd argues that since she was not personally served with a summons notifying her of the proceedings, the trial court lacked both subject matter and personal jurisdiction to proceed on VCDJFS' complaint and its motion for permanent custody, thus rendering the judgments void.
{¶ 25} R.C.
{¶ 26} Sledd is the paternal grandmother of the Hilyard children. A grandparent is a necessary party to juvenile cases only if: (1) the grandparent has a legal right to or a legally protectable interest in custody or visitation with the child, Inre Schmidt (1986),
{¶ 27} Ms. Sledd has not demonstrated that she had a legal right or legally protected interest in custody or visitation with the children. Although the court permitted her to have supervised visitation with the children, its order was clearly temporary in nature and did not create an absolute right of association with them. See, In Re Schmidt (1986),
{¶ 28} Furthermore, appellant was not the legal custodian or guardian of any of the children, regardless of her residency in the household or any "help" she provided the children's parents in taking care of the children prior to the time the dependency-neglect petition was filed. Appellant does not dispute that the children's parents were the children's legal custodians who, as necessary parties, were given statutory notice of the initial complaint and the permanent custody proceedings.
{¶ 29} Because statutory notice of VCDJFS' initial complaint and its motion for permanent custody was provided to the Hilyard children's parents, the trial court had jurisdiction to proceed on the agency's motion for permanent custody. Contrary to appellant's assertion, the notification requirements of R.C.
{¶ 30} Furthermore, Sledd had actual notice of the permanent custody proceedings. She and her counsel, who had been served with a copy of VCDJFS' permanent custody motion, were both present at the September 2004 pretrial hearing when the trial court discussed the rights and potential consequences associated with the permanency hearing. Appellant and her counsel also were present at the March 2005 permanent custody hearings, where she was given an opportunity to be heard but declined to testify on her own behalf. See, In re Webb (1989),
{¶ 31} Accordingly, we hold the trial court did not err in proceeding upon the motion for permanent custody. Appellant's first and second assignments of error are meritless.
{¶ 33} A court considering a permanent custody motion in a dispositional hearing possesses discretion to award legal custody to either parent or to another person who files a proper motion requesting legal custody. See R.C.
{¶ 34} 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 reAdoption of Ridenour (1991),
{¶ 35} 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),
{¶ 36} Contrary to Sledd's argument, the record reflects that VCDJFS and the trial court did consider placement of the children with her and Christine Garvin but found them unsuitable to assume legal custody of the children. And while it is questionable at best that Sledd has standing to raise Garvin's interest in custody, we will address it briefly.
{¶ 38} 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.
{¶ 39} 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.
{¶ 40} 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.
{¶ 42} 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.
{¶ 43} 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 third assignment of error.
{¶ 45} 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.
{¶ 46} 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.
{¶ 47} 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.
{¶ 48} R.C.
{¶ 49} 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),
{¶ 50} 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 certaincircumstances. In re Williams,
{¶ 51} Here, unlike the circumstances in Williams, the record does not reflect that any of the 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),
{¶ 52} 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 conducted an appropriate inquiry and proceeded accordingly. Thus, we overrule appellant's fourth assignment of error.
{¶ 54} R.C.
{¶ 55} 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 reMack,
{¶ 56} 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.
{¶ 57} 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.
{¶ 58} 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 GAL report.
{¶ 59} First, there is no indication that the court considered a psychiatric examination apparently performed upon Sledd. Rather, the trial court merely noted in its summary of testimony that a Franklin County Department of Job and FamilyServices caseworker testified Sledd underwent a psychiatric/psychological assessment in 1995 or 1996. The court did not attribute this information to the GAL report. Neither the testimony nor the judgment contain any reference to the results of Sledd's psychological assessment, and there is no indication that the court gave any weight to the fact that assessment occurred.
{¶ 60} Second, the trial court did not reference the GAL report as support for its findings under R.C.
{¶ 61} Indeed, the trial court's only reference to the GAL report is in its findings of fact under R.C.
{¶ 62} Our review of the trial court's reference in its judgment to the GAL report reveals that it was minimal in nature. To the extent the court considered the GAL's 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 Sledd in the court's fleeting references to the GAL report in reaching its conclusion. Sledd's fifth and sixth assignments of error are overruled.
{¶ 64} Notably, the children's father, mother, Sledd, and Garvin withdrew a joint motion that had requested the court to conduct in camera interviews of the older children to directly ascertain the desires of the children and to determine whether they were being adequately represented. The court noted it was prepared to conduct the interviews as requested. Having withdrawn the motion for the court to conduct in camera interviews with the children, Sledd should not now be heard to complain that the court did not conduct a sufficient inquiry into the children's wishes.
{¶ 65} However, the guardian ad litem, a VCDJFS caseworker, and foster parents with whom the children were placed presented evidence concerning the children's wishes. Thus, we hold that sufficient evidence of the children's wishes was before the trial court. Appellant's final assignment of error is meritless.
Judgment Affirmed.
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.
Abele, J. Kline, J.: Concur in Judgment and Opinion.