In re K.J.D.
Rendered on February 21, 2013
Robert J. McClaren, for Franklin County Children Services.
Reynard & Rice, LLP, and Jeff Reynard, for appellant.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
BRYANT, J.
{¶ 1} Appellant-mother, M.S.S., appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, terminating her parental rights and awarding permanent custody of her two children, K.J.D. and K.R.D., to Franklin County Children Services (“FCCS“). Because: (1) the requisite competent, credible evidence supports the trial court‘s determination; and (2) M.S.S. did
I. Facts and Procedural History
{¶ 2} M.S.S. gave birth to K.J.D. on December 23, 2006; both M.S.S. and K.J.D. tested positive for cocaine, and M.S.S. also tested positive for marijuana. Three days later, FCCS filed a complaint to have K.J.D. declared neglected, dependent, or both, due to M.S.S.‘s substance abuse during pregnancy. As a result, K.J.D. was placed in foster care upon leaving the hospital. On March 29, 2007, the court filed a judgment finding K.J.D. to be an abused, neglected, and dependent child and granted temporary custody to FCCS. FCCS created a case plan for M.S.S. with the goal of reunifying her with K.J.D. While K.J.D. was in FCCS‘s custody, M.S.S. gave birth to K.R.D. on October 6, 2008.
{¶ 3} On April 21, 2009, FCCS filed a motion to terminate temporary custody and return K.J.D. to M.S.S. with court-ordered protective supervision. In a May 8, 2009 judgment entry, the trial court granted FCCS‘s motion and returned K.J.D. to M.S.S.‘s custody under FCCS‘s protective supervision. After a caseworker discovered K.R.D. unsupervised during a scheduled home visit on February 2, 2010, FCCS filed a motion for shelter care for both children, and the magistrate issued an emergency care order to FCCS pending a custody hearing. FCCS developed a new case plan for M.S.S. with the goal of reunifying her with both children, and the trial court granted a temporary order of custody to FCCS as to both.
{¶ 4} In a November 17, 2010 filing, FCCS requested permanent custody of K.J.D. and K.R.D. After a number of continuances for various reasons in 2011, the trial court was able to commence a dispositional hearing on December 5, 2011 but, “[d]ue to Mother‘s confused and irrational mental condition during cross examination, the matter was continued from that date and by agreement of the parties, a Guardian ad Litem was appointed for mother.” (R. 459, July 6, 2012 Decision and Judgment Entry.) On March 14, 2012, K.J.D. and K.R.D.‘s maternal grandmother, M.A.S., filed a motion seeking legal custody of the children. After further delays concerning the children‘s representation, the matter was tried, and the trial court issued its decision granting FCCS permanent custody of K.J.D. and K.R.D.
II. Assignments of Error
{¶ 5} M.S.S. timely appeals, assigning the following errors:
[I.] THERE IS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE JUDGMENT OF THE TRIAL COURT.
[II.] THE TRIAL COURT ERRED IN NOT PERMITTING THE GUARDIAN AD LITEM FOR MOTHER TO PARTICIPATE IN THE TRIAL.
III. First Assignment of Error - Clear and Convincing Evidence
{¶ 6} In her first assignment of error, M.S.S. asserts the trial court erred in granting permanent custody of K.J.D. and K.R.D. to FCCS because the record lacks the requisite evidence.
{¶ 7} As M.S.S. correctly asserts, the right to rear a child is a basic and essential civil right. In re O.J., 10th Dist. No. 05AP-810, 2006-Ohio-286, ¶ 9, citing In re Hayes, 79 Ohio St.3d 46 (1997). Consequently, a parent must be given every procedural and substantive protection the law allows before that parent‘s rights to rearing the child are terminated. Id. Due process includes a hearing upon adequate notice, assistance of counsel, and, under most circumstances, the right to be present at the hearing. Id., citing In re Thompson, 10th Dist. No. 00AP-1358 (Apr. 26, 2001). A parent‘s natural rights nonetheless are subject to the ultimate welfare of the child. As a result, although a parent has a constitutionally protected right to rear his or her child, the right may be terminated when necessary for the best interest of the child. In re S.W., 10th Dist. No. 05AP-1368, 2006-Ohio-2958, ¶ 7, citing In re Cunningham, 59 Ohio St.2d 100, 106 (1979).
{¶ 8} Once a child is determined to be dependent, neglected or abused as defined in
{¶ 9} To terminate parental rights pursuant to an
{¶ 10} On appellate review, permanent custody motions supported by the requisite evidence going to all the essential elements of the case will not be reversed as against the manifest weight of the evidence. In re Brown, 10th Dist. No. 03AP-969, 2004-Ohio-3314, ¶ 11, citing In re Brofford, 83 Ohio App.3d 869 (10th Dist.1992). In determining whether a judgment is against the manifest weight of the evidence, the reviewing court is guided by the presumption that the findings of the trial court are correct. Brofford at 876, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
{¶ 11} Here, the trial court held a hearing in accordance with
A. R.C. 2151.414(B)(1) Factors
{¶ 12} FCCS needed to demonstrate at least one of the
1. R.C. 2151.414(B)(1)(d) and K.J.D.
{¶ 13} Under
2. R.C. 2151.414(B)(1)(a) and K.R.D.
{¶ 14} Unlike K.J.D., K.R.D. was not in FCCS‘s temporary custody for at least 12 months of a consecutive 22-month period. Applying
{¶ 15} Initially, FCCS has not been able to identify either child‘s biological father. M.S.S. was not able to provide FCCS with information as to K.R.D.‘s father other than that he is a drug dealer named Frank. K.J.D.‘s biological father has not been located, and the child‘s legal father neither has any role in the child‘s life nor has seen the child for several years. M.S.S. does not challenge the trial court‘s findings as to the children‘s fathers.
{¶ 16} As to whether the children could be placed with M.S.S. herself within a reasonable time, or should be placed with her, the trial court determined FCCS staff engaged in both “reasonable case planning and diligent efforts” to assist M.S.S. in remedying the problems that initially caused the children to be placed outside the home, yet M.S.S. still “failed continuously and repeatedly to substantially remedy the conditions that caused the initial removal.” (Decision and Judgment Entry, at 13.) See
{¶ 17} After the children were removed from M.S.S.‘s custody in 2010, FCCS developed a case plan with the goal of reunifying the children with their mother. The case plan stemmed from the reunification case plan FCCS created for M.S.S. in 2006 after K.J.D.‘s removal at birth from M.S.S.‘s care. The new case plan required M.S.S. to maintain stable housing and employment, complete parenting classes and demonstrate
{¶ 18} According to the evidence, M.S.S. struggles with substance abuse and has a history of abusing cocaine, alcohol, marijuana, and prescription drugs such as Percocet, Xanax, and Seroquel, often without a prescription. See
{¶ 19} M.S.S. has ongoing mental health issues as well. See
{¶ 20} M.S.S. had some success participating in substance abuse and mental health treatment pursuant to the case plan created after K.J.D. was placed in FCCS‘s custody in December 2006, enough that K.J.D. was returned to her custody in April 2009. “[S]hortly after reunification,” M.S.S. stopped attending counseling. (June 19, 2012 Tr. 13.) M.S.S.‘s caseworker testified that in November 2009, she “made a referral for Berea that does in-home mental health services, they also have a psychiatric doctor” who would have come “into the home to provide mom with services.” (June 19, 2012 Tr. 16.) Berea set up two appointments with M.S.S., “but she failed to meet at either appointment.” (June 19, 2012 Tr. 16.) The caseworker further testified that Berea wanted to cancel its services, but FCCS convinced it to give M.S.S. one more chance. When Berea set up another appointment in December 2009, M.S.S. again “failed to meet that appointment, and so therefore, they terminated their services, closed their case.” (June 19, 2012 Tr. 16.)
{¶ 21} Since the children were removed from M.S.S.‘s care in February 2010, FCCS has secured M.S.S. placement in several substance abuse treatment and mental health counseling programs but she has not successfully completed any of those programs. Shortly after the children‘s removal, and in accordance with the new case plan, FCCS
{¶ 22} In addition, M.S.S. regularly failed to submit the drug screens required as part of her reunification case plan, and she frequently tested positive to the screens she submitted. M.S.S.‘s testimony makes clear that she never obtained stable housing; rather, she stayed at various relatives’ and friends’ houses. She did not secure steady legal employment, but lived on money from her parents, occasional work at a cousin‘s appliance store, and money obtained on several occasions by driving to Florida, procuring prescription pain pills, and selling the pills in Ohio.
{¶ 23} To M.S.S.‘s credit, the evidence indicates she attended visitation regularly for long stretches of time. Further, when M.S.S. was with the children, she worked on maintaining her bond with them and they looked forward to seeing her. M.S.S., however, did not see K.J.D. between December 2007 and July 2008 during K.J.D.‘s first removal from M.S.S.‘s care. After both children were removed from M.S.S.‘s care in February 2010, she did not see them from July 2011 to December 2011. See
{¶ 24} Overall, the evidence indicates M.S.S. failed to remedy any of the personal issues that caused her to lose custody in 2010. Although she and her children have a bond, M.S.S. has serious drug abuse and mental health problems that prevent her from capably caring for her children or providing for their basic needs. See
{¶ 25} Furthermore, M.S.S.‘s failure to make progress with her personal issues reflects her failure to demonstrate commitment to achieving her case plan goals. “Failure to complete significant aspects of a case plan despite opportunities to do so is grounds for terminating parental rights.” O.J. at ¶ 14, citing In re M.L.J., 10th Dist. No. 04AP-152, 2004-Ohio-4358; Brofford at 878 (observing that “noncompliance with the case plan is a ground for termination of parental rights“); In re Bailey, 11th Dist. No. 2001-G-2340 (July 20, 2001); In re Carr, 5th Dist. No. 2004-CA-00256, 2004-Ohio-6144.
{¶ 26} The trial court thus did not err in finding clear and convincing evidence that K.R.D. could not be placed with M.S.S. within a reasonable time and should not be placed with M.S.S. That
B. Children‘s Best Interest
{¶ 27} In assessing the best interests of the child, the court is to consider all relevant factors, including, but not limited to: (a) the interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; (b) the wishes of the child, as expressed directly by the child or through the child‘s GAL, with due regard for the maturity of the child; (c) the custodial history of the child; (d) the child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; and (e) whether any of the factors in divisions (E)(7) to (11) apply in relation to the parents and child.
{¶ 28} Here, the court determined “FCCS presented clear and convincing evidence that permanent custody of [K.J.D.] and [K.R.D.] are in each child‘s respective best interest.” (Decision and Judgment Entry, at 21, citing
{¶ 29}
{¶ 30}
{¶ 31}
{¶ 32}
{¶ 33} Further, after the children were removed from her care in 2010, M.S.S. was unable to remedy the issues that caused them to be placed with FCCS, as she could not maintain stable housing and employment and obtain substance abuse and mental health counseling. Because housing, employment, mental health, and drug abuse are unabated issues in M.S.S.‘s life that show no signs of improvement, leaving the children with her was not a viable option.
{¶ 34} Finally,
{¶ 35} In the final analysis, the trial court had sufficient evidence to find by clear and convincing evidence that the children‘s best interests are served by placing them in the permanent custody of FCCS to facilitate their adoption into a permanent home.
C. Custody to Maternal Grandmother, M.A.S.
{¶ 36} M.S.S. argues, alternatively, that the trial court should have awarded custody to her mother, M.A.S. M.A.S. filed a motion for custody in the trial court but did not appeal the court‘s decision granting permanent custody to FCCS.
{¶ 37} This court previously “question[ed] whether [a parent] has standing to assert the rights of others who are not parties” to an appeal from an order terminating that parent‘s custody. S.W. at ¶ 30, citing In re Conn, 10th Dist. No. 03AP-348, 2003-Ohio-5344, ¶ 7; In re W.A., 10th Dist. No. 06AP-485, 2006-Ohio-5750, ¶ 20. “Even if [the parent] has the requisite standing, a trial court is not required to consider placing a child with a relative prior to granting permanent custody to an agency,” as relatives seeking custody of a child are not afforded the same presumptive rights that a parent receives. Id., citing In re Zorns, 10th Dist. No. 02AP-1297, 2003-Ohio-5664, ¶ 28. Further, a “trial
{¶ 38} Here, FCCS investigated M.A.S. as a possible placement option for the children but concluded such a placement was not in the children‘s best interest. The trial court agreed, finding insurmountable issues that related to both M.A.S.‘s own limitations and her ability to protect the children from M.S.S. The evidence at trial supports the trial court‘s conclusion.
{¶ 39} At the permanent custody hearing, both the FCCS caseworkers and the children‘s GAL challenged M.A.S.‘s testimony that she could adequately care for the children. One caseworker testified she could not recommend M.A.S. for placement “[d]ue to concerns about her ability to care for the children and -- and conditions of the home.” (June 19, 2012 Tr. 46.) Another caseworker testified she did not think M.A.S.‘s home was safe for the children and, further, that even if the home were improved she “would still have concerns in regards to supervision.” (June 20, 2012 Tr. 72.) The GAL similarly stated she had “concerns about [M.A.S.‘s] ability to supervise kids.” (June 20, 2012 Tr. 142.)
{¶ 40} Although M.A.S. claimed she could control M.S.S., she acknowledged M.S.S. acts against M.A.S.‘s wishes without repercussions. A caseworker confirmed, noting M.A.S. could not “stand up” to her daughter, and when M.S.S. “bosses her mom around,” M.A.S. “just goes with it.” (June 20, 2012 Tr. 12-13.) As a result, the caseworker stated M.A.S. “doesn‘t have control of the things that happen in her home.” (June 20, 2012 Tr. 13.) The children‘s GAL similarly testified M.A.S. does not have “any control over [M.S.S.] whatsoever.” (June 20, 2012 Tr. 140.) Indeed, at trial when the GAL expressed to M.A.S. her concern that M.A.S. could not stop M.S.S. from taking the children away, even if M.S.S. were “using,” M.A.S. responded, “I see your point. Yeah. Yeah.” (June 20, 2012 Tr. 145.)
{¶ 41} Further, under M.S.S.‘s own characterization, M.A.S. was the children‘s “primary caregiver when the children were in the home from October 2008 to February 2010.” (Appellant‘s brief, at 3.) The time period includes the February 2, 2010 incident that led to FCCS seeking an emergency order and taking custody of both children. In that
{¶ 42} Given the evidence, the trial court did not abuse its discretion in determining the children should not be placed with M.A.S.
{¶ 43} M.S.S.‘s first assignment of error is overruled.
IV. Second Assignment of Error - GAL‘s Trial Participation
{¶ 44} M.S.S.‘s second assignment of error asserts the trial court “erred in not permitting the guardian ad litem for mother to participate in the trial.” (Appellant‘s brief, at 6.) She alleges her GAL should have been permitted to cross-examine the trial witnesses and to present a closing argument. (Appellant‘s brief, at 9.)
{¶ 45} FCCS asserts M.S.S. lacks standing to challenge on appeal the GAL‘s level of involvement at trial because, in so doing, she essentially seeks “to assert the rights of a non-appealing party.” (Appellee‘s brief, at 22.) We decline to address the issue because, even if M.S.S. has standing to present the argument, her substantive assignment of error lacks merit. See In re A.S., 10th Dist. No. 05AP-351, 2005-Ohio-5492, ¶ 9 (declining to address standing issue where parent asserted right of child to have counsel because court found no such right to counsel).
{¶ 46}
{¶ 47} The GAL‘s introduction into the proceedings “provides an additional level of protection for the incompetent parent” and “works to ensure that the parent‘s rights are not compromised.” In re Moore, 12th Dist. No. CA99-09-153 (Sept. 5, 2000). The GAL‘s role differs from the attorney‘s role in that, while the attorney represents the parent‘s wishes, the GAL investigates the parent‘s situation and, regardless of the parent‘s wishes, recommends to the court the course of action that would be in the parent‘s best interest. See Matter of Doe, 6th Dist. No. L-93-045 (Dec. 30, 1993); Baby Girl Baxter at 232.
{¶ 48} Because neither M.S.S.‘s counsel nor her GAL objected to the GAL‘s level of participation at trial, M.S.S. has forfeited all but plain error. Courts are to notice plain error under
{¶ 49} In an attempt to demonstrate plain error, M.S.S. relies on the Supreme Court of Ohio‘s decision in Baby Girl Baxter, where the appellant-parent asserted her trial representative, “who served as both her attorney and guardian ad litem in juvenile court, had conflicting duties and that he, therefore, failed to provide her with proper representation.” Id. at 232. M.S.S. alleges Baby Girl Baxter implicitly requires the trial court to permit the GAL, separately from her attorney, to elicit testimony at trial. M.S.S. also cites
{¶ 50} Even if we assume, without deciding, that M.S.S.‘s GAL should have been permitted to cross-examine witnesses and give a closing argument, M.S.S. has not pointed to anything in the record suggesting the GAL‘s not participating in proceedings prejudiced
{¶ 51} Initially, Baxter and M.S.S.‘s case are factually distinct in that M.S.S. had both a GAL and an attorney. Apart from the factual distinction, M.S.S.‘s argument seems to misunderstand the GAL‘s role. The GAL is not always advocating for reunification and may believe the ward‘s wishes do not align with her best interests. See Baby Girl Baxter at 232 (noting the attorney/GAL, acting in his capacity as GAL, elicited testimony “from the psychologist that his ward-client would have great difficulty in caring for her child“); Doe. Accordingly, insofar as M.S.S. asserts her GAL should have been able to elicit testimony in his role as GAL, such testimony may well have been “detrimental to [the parent‘s] legal case.” Baby Girl Baxter at 232.
{¶ 52} M.S.S. nonetheless asserts that because the trial court is required to consider the “interaction and interrelationship of the child with the child‘s parent[s]” under
{¶ 53} Moreover, the trial court‘s decision granting FCCS permanent custody of the children is based on substantial evidence that M.S.S. continually failed to make progress in dealing with her substance abuse and mental health issues, that she did not comply or follow through with her case plan or the various treatment programs provided through FCCS, and that she failed to find regular employment or stable housing. M.S.S. does not address how allowing her GAL to cross-examine witnesses or set forth a closing argument would have impacted the court‘s decision in light of such determining factors. Unable to demonstrate prejudice, M.S.S. necessarily fails to demonstrate plain error.
{¶ 54} Lastly, M.S.S., in passing, contends the record does not indicate “that there was an investigation into the mother‘s situation by the GAL, that the GAL for mother determined her best interests, or that the best interests of mother were expressed to the Court.” (Appellant‘s brief, at 9.) M.S.S. did not raise the issue in an assignment of error, and it therefore is not properly before us. Everhome Mtge. Co. v. Baker, 10th Dist. No. 10AP-534, 2011-Ohio-3303, ¶ 20. Even if it were properly presented, M.S.S. fails to set forth any evidence establishing the GAL‘s actions or inaction prejudiced her case; Doe (determining that when a GAL “neglects his duties and fails to conduct an independent investigation, the error is harmless ‘where, during the trial, the information is presented which could have been presented by the guardian ad litem’ “), citing In re: Matter of the Doe Children, 6th Dist. No. L-92-296 (Sept. 17, 1993).
{¶ 55} M.S.S.‘s second assignment of error is overruled.
V. Disposition
{¶ 56} Having overruled M.S.S.‘s two assignments of error, we affirm the decisions of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgments affirmed.
TYACK and McCORMAC, JJ., concur.
McCORMAC, J., retired, formerly of the Tenth Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C).