IN THE MATTER OF: K.R.
CASE NO. 2015-T-0008
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
June 29, 2015
[Cite as In re K.R., 2015-Ohio-2819.]
TIMOTHY P. CANNON, P.J.
Judgment: Affirmed.
Susan Porter Collins, Trumbull County Children Services Board, 2282 Reeves Road, N.E., Warren, OH 44483 (For Plaintiff-Appellee).
Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut Avenue, N.E., Warren, OH 44483-5805 (For Defendant-Appellant).
Terry A. Grenga, 3685 Stutz Drive, Suite 100, Canfield, OH 44406 (Guardian ad litem).
TIMOTHY P. CANNON, P.J.
{¶1} Apрellant, Monica Ravotti, appeals the January 23, 2015 judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, terminating her parental rights concerning her daughter K.R. and granting permanent custody to appellee, Trumbull County Children Services Board (hereafter “TCCSB“). We hold the triаl court did not err in concluding that there was clear and convincing evidence to support its determination that appellant‘s parental rights should be terminated. Accordingly, we must affirm the judgment of the trial court.
{¶3} TCCSB implemented a case plan with the goal of reunification. Appellant met certain conditions of the plan; she, nevertheless, failed several drug tests and failed to retain and follow the parenting practices acquired from attending six planned sessions for parenting teens. Appellant also failed to seek psychological treatment and additional counseling per the case plan.
{¶4} The record reflects that shortly after being placed into the custody of TCCSB, K.R. was placed in a foster home and has become accustomed to her new environment. In an in-camera intеrview conducted on February 21, 2014 (and presented in court on March 14, 2014), K.R. requested her case plan be amended to reflect that she no longer wished to be reunited with her family. On July 30, 2014, TCCSB filed a motion for permanent custody.
{¶5} On October 16, 2014, the magistrate recommended that appellant‘s parental rights to K.R. be permanently terminated. The magistrate further recommended K.R. be placed in the permanent custody of TCCSB for the purpose of adoption and placement pursuant to
{¶6} Appellant filed a timely notice of appeal and, as her first assignment of error, alleges:
{¶8} We recognize that the termination of parental rights is “the family law equivalent of the death penalty.” In re Phillips, 11th Dist. Ashtabula No. 2005-A-0020, 2005-Ohio-3774, ¶22, citing In re Hoffman, 97 Ohio St.3d 92, 95, 2002-Ohio-5368. This court has stated that a parent is entitled to “fundamentally fair procedures in accordance with the due process provisions under the
{¶9}
(a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period * * * and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period or the child has been in the temporary custody of one or
more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state.
{¶10} “Clear and convincing evidence is more than a mere preponderance of evidence; instead, it is evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” In re Aiken, 11th Dist. Lake No. 2005-L-094, 2005-Ohio-6146, ¶28.
{¶11} In this case, at the time the complaint was filed, K.R. had not been in the temporary custody of TCCSB for at least 12 months of a consecutive 22-month period. As noted by the magistrate, “since the Motion for permanent custody was filed in July 2014, the measurement period for ORC 2151.414(B) purposes is from September 13, 2013, to July 31, 2014, a period of ten months.” The magistrate then found, “for purposes of
{¶12}
With respect to a motion made pursuant to division (D)(2) of section
2151.413 of the Revised Code, the court shall grant permanent custody of the child to the movant if the court determines in accordance with division (E) of this section that the child cannot be рlaced with one of the child‘s parents within a reasonable time or should not be placed with either parent and determines in accordance with division (D) of this section that permanent custody is in the child‘s best interest.
{¶13} In finding that a child cannot or should not be placed with his or her parent(s) within a reasonable time, the trial court must review the factors under
{¶14} A review of the record and the trial court‘s judgment entry in this case indicates the trial court reviewed the appropriate factors and found that
{¶15} The trial court was presented with clear and convincing evidence to support findings under
{¶16} Having determined that one of the four factors in
(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 guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children serviсes agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in rеlation to the parents and child.
In its judgment entry, the trial court examined the aforementioned “best interest” prong—
{¶17} On appeal, appellant argues the trial court did not find by clear and convincing evidence that all statutory standards were met in terminating her parental rights to K.R. Aрpellant maintains the trial court should have granted legal custody to the foster parents instead of granting permanent custody to the TCCSB. We disagree.
{¶18} In its evaluation of
{¶19} Addressing the other factors of
{¶20} Upon review of the record, we сonclude clear and convincing evidence established that it was in the best interest of K.R. to be placed in permanent custody with the TCCSB.
{¶21} Appellant‘s first assignment of error is without merit.
{¶22} Appellant‘s second assignment of error alleges:
{¶23} “The trial court erred in not appointing a guardian ad litem for the natural mother to assist in preparing a defense.”
{¶25}
In any proceeding concerning an alleged or adjudicated delinquent, unruly, abused, neglected, or dependent child in which the parent appears to be mentally incompetent * * *, the court shall appoint a guardian ad litem to protect the interest of that parent.
{¶26}
The court shall appoint a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile court proceeding when * * * [t]he рarent * * * appears to be mentally incompetent[.]
{¶27} A trial court‘s decision whether to appoint a guardian ad litem is reviewed under an abuse-of-discretion standard. In re Sappington, 123 Ohio App.3d 448, 454 (2d Dist.1997). The first inquiry in determining whether the trial court complied with
{¶28} If the court on appeal finds that a guardian ad litem should have been appointed, the next inquiry is whether there was any prejudice by the failure to appoint a guardian ad litem. K.P., supra, at *13-14; Anderson, supra at ¶9.
{¶29} At the outset, we note that appellant failеd to request the appointment of a guardian ad litem until the day of the hearing on the termination of parental rights motion. At the hearing, appellant moved for a continuance until the court appointed her a guardian ad litem. The motion was denied, and the hearing proceeded.
{¶31} Nothing in the record indicatеs the extent to which, if at all, appellant‘s mental health issues impeded her ability to understand and participate in these proceedings. Although appellant‘s case plan required her to obtain a current mental health assessment, she failed to do so. Moreovеr, the record in this case demonstrates that appellant appeared to understand the nature of these proceedings and even took affirmative steps to attempt to assist in her case.
{¶32} Additionally, “[e]ven where a parent‘s attorney was appointed solely as counsel and not specifically for the dual purpose of serving as guardian ad litem, the parent does not suffer prejudice if counsel safeguards the parent‘s rights and advocates for reunification in accordance with the parent‘s wishes.” In re M.T., 6th Dist. Lucas No. L-09-1197, 2009-Ohio-6674, ¶17. From the reсord, it is evident that appellant‘s counsel represented her vigorously throughout the proceedings and advocated that the trial court deny TCCSB permanent custody of K.R.
{¶33} Based on the record before us, the trial court did not abuse its discretion in failing to appoint a guardian ad litem for appellant. Appellant‘s second assignment of error is without merit.
{¶34} The judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, is hereby affirmed.
THOMAS R. WRIGHT, J., concurs,