In re K. G.
Dated: September 20, 2010
CARR, Presiding Judge.
{¶1} Appellant, Alicia G., appeals from a judgment of the Wayne County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her minor child, K.G., and placed him in the permanent custody of the Wayne County Children Services Board (“CSB“). This Court affirms.
I.
{¶2} Alicia G. is the mother of K.G., born September 8, 2008. The biological father of the child, Steven K., is not a party to the present appeal. K.G.‘s father visited his son once during the proceedings, but made no other effort to comply with a case plan or to seek custody, explaining that he did not feel he would be able to provide the home K.G. should have.
{¶3} According to the initial complaint filed by CSB, hospital personnel contacted CSB shortly after the child‘s birth because Mother was expected to remain hospitalized while K.G. was ready to be released, and Mother was unable to provide an interim caregiver. In
{¶4} At a shelter care hearing conducted approximately two weeks later, the trial court found that it was in the best interest of the child to be returned home under the protective supervision of the agency. Six weeks later, CSB filed an amended complaint, which was based on renewed concerns that Mother was not able to properly care for the child. CSB indicated that it learned from the child‘s pediatrician that K.G. was not gaining weight as expected and had been diagnosed with scabies and severe diaper rash with extensive bleeding.
{¶5} On December 11, 2008, the trial court adjudicated K.G. to be a dependent child and placed him in the temporary custody of CSB. The court adopted a case plan that required Mother to: (1) participate with K.G. in Help Me Grow and Families Learning Together; (2) complete a psychological evaluation to assess her mental health needs and follow recommendations; (3) complete a drug and alcohol assessment and follow recommendations; and (4) provide for the basic needs of her child. Weekly supervised visits were scheduled.
{¶6} The psychologist assessed Mother as having a full-scale IQ of 64 and found that she had a long history of depression and psychological problems, epilepsy, and attention deficit hyperactivity disorder (“ADHD“). He diagnosed Mother with a major depressive disorder; recurrent and severe with psychotic features; post-traumatic stress disorder based on sexual
{¶7} K.G. was also assessed and was found to have delays in such skills as crawling, walking, and grasping objects. The child currently receives weekly physical therapy.
{¶8} Mother was incarcerated from June through November 2009 on charges of breaking and entering, theft, and arson. In October 2009, CSB moved for permanent custody, and the matter proceeded to hearing. On March 30, 2010, the trial court terminated the parents’ parental rights and awarded permanent custody to the agency. Mother appeals and assigns three errors for review.
II.
ASSIGNMENT OF ERROR I
“The termination of parental rights was granted with input from a guardian ad litem who did not follow Rule 48 of Superintendence and therefore [his] testimony was given undue weight.”
{¶9} Mother contends that K.G.‘s guardian ad litem failed to comply with the rules of conduct for guardians ad litem as set forth in Rule 48 of the Rules of Superintendence for Ohio Courts and, therefore, his testimony in support of permanent custody was given undue weight by
{¶10} The Supreme Court of Ohio recently adopted Sup.R. 48 to govern guardian ad litem standards in Ohio and has indicated that this is the first rule that sets statewide standards regarding the appointment, responsibilities, training and reporting requirements of guardians ad litem. http://www.sconet.state.oh.us/GAL. The rule became effective March 1, 2009. The Rules of Superintendence are promulgated by the Ohio Supreme Court pursuant to Section 5(A)(1), Article IV, of the Ohio Constitution. Sup.R. 1(B).
{¶11} Through decisional law, the Supreme Court has indicated that the Rules of Superintendence are not designed to alter basic substantive rights. See State v. Singer (1977), 50 Ohio St.2d 103, 110. Certain portions of some Rules of Superintendence have been awarded mandatory status. See, e.g., State ex rel Hillyer v. Tuscarawas Cty Bd. of Commrs. (1994), 70 Ohio St.3d 94, 99; Smith v. Dartt, 6th Dist. No. L-05-1124, 2005-Ohio-1885, at ¶3. Ordinarily however, Ohio appellate courts have indicated that the Rules of Superintendence are general guidelines for the conduct of the courts and do not create substantive rights in individuals or procedural law. See, e.g., Sultaana v. Giant Eagle, 8th Dist. No. 90294, 2008-Ohio-3658, at ¶45; State v. Porter (9th Dist., 1976), 49 Ohio App.2d 227, 230; State v. Gettys (1976), 49 Ohio App.2d 241, 243; State v. Smith (1976), 47 Ohio App.2d 317, 328 (Krenzler, J. concurring).
{¶12} Sup.R. 48 has only recently become effective and there is little case law interpreting its application. Certainly, Sup.R. 48 provides, at the least, good guidelines for the
{¶13} In the present case, Mother‘s argument goes to the weight of the guardian‘s testimony and not to admissibility or process. Upon consideration of the matters cited by Mother, we conclude that the argument presents no basis for reversal.
{¶14} Mother first complains that the guardian ad litem did not observe Mother with K.G., whereas Sup. R. 48(D)(13)(a) states that “unless impracticable or inadvisable *** a guardian ad litem shall *** observe the child with each parent.” The guardian ad litem acknowledged that he did not observe K.G. with Mother, but asserted that he attempted to do so on two occasions. Regarding the first attempt, the guardian ad litem was informed on the morning of the visit that the visit was cancelled. The witness could not recall the reason for the cancellation, and we cannot otherwise discern the reason for that cancellation from the record.
{¶15} The trial court did otherwise have some evidence for its consideration regarding the conduct of visits between Mother and K.G. because the caseworker testified to the visits she observed. The caseworker testified that Mother was able to take parenting instruction from her, but also that Mother needed instruction on basic parenting skills, such as burping the baby when bottle-feeding him and soothing the baby with techniques other than feeding, such as rocking or patting. The caseworker testified that Mother was encouraged to bring food or other items to visits, particularly for a lengthy four-hour visit, but she never did so. Mother was said to send text-messages and make cell-phone calls excessively during her visits. However, Mother never physically harmed the child or did anything that endangered him.
{¶16} Next, Mother complains that the guardian ad litem had little contact with Mother and never went to her residence, while Sup. R. 48(D)(13) states that the guardian ad litem “shall make reasonable efforts to *** contact all parties.” The rule does not indicate that a guardian ad litem shall make repeated contacts. This guardian ad litem visited with Mother once while she was in jail, spoke with her on the telephone, and spoke with her a few times “in the hallway,” presumably at CSB offices or in the courthouse. It is true that the guardian ad litem never went to Mother‘s residence, but the rule does not require that. In any event, there is no evidence that Mother ever had a stable home of her own. Mother was evicted from the apartment that she shared with a boyfriend shortly before the guardian ad litem was appointed, was incarcerated for
{¶17} Finally, Mother complains that the guardian ad litem did not solicit information regarding her involvement with the Cadet and STEPS programs or obtain information about her drug screens from providers including her probation officer prior to the hearing. In support of her argument, she cites Sup.R. 48(D)(13)(f) and (g), which state that “the guardian ad litem shall *** [r]eview criminal, civil, educational and administrative records” and “[i]nterview *** medical and mental health providers, child protective service workers and relevant court personnel and obtain copies of relevant records.”
{¶18} The guardian ad litem did review some records and interviewed some providers prior to the hearing. In particular, the guardian ad litem testified that he had reviewed the psychological assessment of Mother and interviewed K.G.‘s pediatrician before the hearing. Additionally, the guardian ad litem attended the permanent custody hearing and heard testimony regarding Mother‘s efforts in substance abuse programs and counseling sessions. At the conclusion of the hearing, he testified that the evidence he had heard reinforced his previously held opinion and his recommendation that the child should be placed in the permanent custody of CSB.
{¶19} Moreover, the substance of the material that the guardian ad litem had not obtained in advance of the hearing was not persuasively in Mother‘s favor. As to the Cadet program, the in-court testimony revealed that Mother had been an active participant, but that she had only completed two weeks of the nine-week program. Regarding the STEPS program, Mother met with Counselor Jeff Higginson only once and had just recently signed up for the Choices program, which typically lasts four to five months. Finally, Mother‘s probation officer
{¶20} The record does not demonstrate that the conduct of the guardian ad litem was unreasonable or in disregard of the rule. Nor has Mother demonstrated prejudice resulting from that conduct. Moreover, Mother‘s assignment of error goes to the weight of the evidence, not the admissibility of it. The trial court heard the context and the explanations of the guardian ad litem in regard to his investigations and in support of his recommendations. The witness was subjected to thorough cross-examination by Mother‘s trial counsel. The judge was entitled to believe or disbelieve his testimony and to consider it in light of all the other testimony presented at the hearing. Moreover, Mother has failed to point to any specific findings in the ten-page judgment entry that demonstrate that the trial judge erroneously relied on the testimony of the guardian ad litem. Nor does she suggest that any particular finding is unreasonable or otherwise unsupported by the evidence because of improper reliance on the testimony of the guardian ad litem. In addition to the guardian ad litem, the caseworker and a psychologist testified in support of CSB‘s motion for permanent custody. Mother‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“The termination of Mother‘s rights to [K.G.] was granted against the manifest weight of the evidence presented before the Court.”
{¶21} Mother contends that the weight of the evidence does not support the judgment of the trial court. In so doing, she specifically challenges the evidence in regard to a finding pursuant to
ASSIGNMENT OF ERROR III
“The Court‘s determination that [CSB] made reasonable efforts to eliminate the continued removal of the child from the child‘s home was against the manifest weight of the evidence presented before the Court.”
{¶23} Mother has argued that the trial court erred in violation of
{¶24} In that decision, the Ohio Supreme Court stated that
{¶25} Nonetheless, this Court would also find Mother‘s argument that CSB did not make reasonable efforts lacks merit. In support of her argument, Mother claims that a number of the services offered by CSB were not viable options for her. Frequently, however, this was a result of her own doing. For example, Mother was referred to an in-patient substance abuse facility, but because of her behavioral issues and arson conviction, she was found to be ineligible for the program. Mother also complains that extended visits were never offered to her. The record indicates that Mother had at least one four-hour visit, but she failed to bring supplies and/or activities for that visit as recommended by her caseworker. When asked why visits were not extended, the caseworker explained that Mother was continuing to miss visits. In fact, Mother attended less than half of the scheduled visits. This explanation is reasonable and would support a decision not to extend the length or frequency of visits. When asked about problems during visits that might have been part of the reason for not extending visits, the caseworker
{¶26} Mother‘s third assignment of error is overruled.
III.
{¶27} Mother‘s three assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR
APPEARANCES:
REBECCA A. CLARK, Attorney at Law, for Appellant.
MARTIN FRANTZ, Prosecuting Attorney and LATECIA E. WILES, Assistant Prosecuting Attorney, for Appellee.