IN THE MATTER OF: L.J. and M.J.
C.A. CASE NO. 2015-CA-85
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
April 22, 2016
2016-Ohio-2658
T.C. NO. 2014-534 аnd 2014-535 (Civil Appeal from Common Pleas Court, Juvenile Division)
OPINION
Rendered on the 22nd day of April, 2016.
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Appellee State of Ohio
JAMES S. ARMSTRONG, Atty. Reg. No. 0020638, 131 N. Ludlow Street, Suite 386 Talbott Tower, Dayton, Ohio 45402
Attorney for Appellant H.K.
LISA J. NILES, Atty. Reg. No. 0061134, 1122 W. High Street, Springfield, Ohio 45505
Guardian Ad Litem
FROELICH, J.
{¶ 1} H.K. (Mother) appeals from a judgment of the Clark County Court of Common Pleas, Domestic Relations Division, Juvenile Section, which granted Clark County Children Services‘s (CCCS) motion for permanent custody of two of Mother‘s children,
Custody Proceedings
{¶ 2} On April 14, 2014, CCCS filed a complaint alleging that L.J. and M.J. were dependent children, and the children were removed from Mother‘s home. A guardian ad litem was appointed for the children. On June 13, 2014, the trial court adjudicated the children to be dependent and granted temporary custody to CCCS. Temporary custody wаs extended at CCCS‘s request in April 2015.
{¶ 3} In August 2015, CCCS filed a motion for permanent custody of L.J. and M.J. A hearing was held in September 2015. L.J. and M.J. were ten and nine years old, respectively, at the time of the hearing. Their father did not participate in the proceedings, was not a legal resident of the United States, and was living out of the country. After the hearing, the trial court granted permanent custody of the children to CCCS.
Assignments of Error
{¶ 4} Mother appeals from the judgment of the trial court, raising four assignments of error. The first three assignments relate to the manner in which the trial court considered the children‘s wishes about custody. Specifically, Mother claims that the trial court erred or abused its discretion in 1) failing to appoint an attornеy for the children separate from the guardian ad litem, 2) failing to conduct an in camera interview with the children about their wishes, and 3) failing to give appropriate consideration to the children‘s wishes with respect to custody. In her fourth assignment, she asserts that the trial court erred in awarding permanent custody to CCCS.
In Camera Hearing and Appointing an Attorney for the Children
{¶ 6} “Generally, when an attorney is appointed as guardian ad litem, that attorney may also act as counsel for the child, absent a conflict of interest.” In re Janie M., 131 Ohio App.3d 637, 639, 723 N.E.2d 191 (6th Dist.1999), citing
{¶ 7} Effective March 1, 2009, the Supreme Court of Ohio adopted Rule 48 of the Rules of Superintendence for the Courts of Ohio to govern guardian ad litem standards
{¶ 8} In determining whether a conflict exists, courts should make a determination, on a case-by-case basis, whether the child actually needs independent counsel, taking into account the maturity of the child. In re B.K., 12th Dist. Butler No. CA2010-12-324, 2011-Ohio-4470, ¶ 19. Generally, the appointment of independent counsel is necessary when the child has “consistently and repeatedly еxpressed a strong desire that is inconsistent with the guardian ad litem‘s recommendations.” In re M.H., 12th Dist. Fayette No. CA2012-11-035, 2013-Ohio-1063, ¶ 34; In re B.W., 9th Dist. Medina No. 12CA0016-M, 2012-Ohio-3416, ¶ 42.
{¶ 9} Some appellate courts have found that, where no request is made in the trial court for counsel to be appointed for the children in permanent custody proceedings, the issue will not be addressed for the first time on appeal. See, e.g., In re K.H., 9th Dist. Summit No. 22765, 2005-Ohio-6323, ¶ 41; In re Graham, 4th Dist. Athens No. 01CA57, 2002-Ohio-4411, ¶ 31-33.
{¶ 10} In this case, the guardian ad litem expressed her view that L.J. and M.J. were old enough to state their wishes about custody, and she testified about their wishes
{¶ 11} The trial court did not conduct an in camera interview with the children about their wishes. Based on the record of the case, the trial court had no reason to question the guardian ad litem‘s representations as to the children‘s feelings, and Mother did not request that the children be interviewed in сamera at any time prior to or during the hearing. Mother also did not request in the trial court that an attorney be appointed for the children. Considering the relatively young ages of the children (10 and 9) and the lack of any other indications in the record that the children had a consistent and strong opinion about the custody determination that directly conflicted with the views of the guardian ad litem or that the guardian ad litem failed to report to the court, the trial court did not err or abuse its discretion by not conducting in camera interviews with the children sua sponte.
{¶ 13} Under the circumstances presented in this case, including the inconsistency in the children‘s stated desires and their relatively young ages, we disagree with Mother‘s assertion that the court was required to appoint counsel for the children; there was no evidence that the children had consistently and repeatedly expressed wishes as to the custody determination that conflicted with the guardian ad litem‘s view of their best interest. We also disagree with Mother‘s assertion that in camera interviews were essential to the court‘s determination, particularly in the absence of any request that the court conduct such interviews and of any evidence that the guardian ad litem‘s repоrt did not accurately reflect the children‘s views.
{¶ 14} The first and second assignments of error are overruled.
Consideration of Children‘s Wishes
{¶ 15} In her third assignment of error, Mother argues that the trial court failed to
{¶ 16} Mother‘s suggestion that the trial court did not consider the children‘s wishes is not supported by the record. Although the trial court did not discuss the issue at length in its judgment, it did note that the children (through the guardiаn ad litem) “indicate[d] a strong desire to be placed in a loving, secure, and permanent home.” This characterization of the children‘s wishes does not reference the children‘s occasional and qualified statements of a desire to return to Mother‘s care, but it is consistent with the children‘s statements to the guardian ad litem that changes in their own behavior (L.J.) or Mother‘s behavior (M.J.) would be necessary to make living with Mother workable or desirable. This characterization is also consistent with the guardian ad litem‘s statements about the significant progress the children had made in the more stable environments of their foster homes.
{¶ 17} Mother cites no authority for her assertion that a child must be informеd of all the ramifications of a permanent custody determination before the child‘s “wishes” can be meaningfully considered, and we are aware of none.
Best Interest Analysis
{¶ 18} Mother‘s fourth and final assignment of error challenges the trial court‘s determinations that awarding permanent custody of L.J. and M.J. to CCCS was in the children‘s best interests and that the children could not be returned to Mother‘s care within a reasonable period of time.
{¶ 19}
{¶ 20}
{¶ 21} All of the court‘s findings must be supported by clear and convincing evidence.
{¶ 22} The evidence presented at the hearing was as follows:
{¶ 24} The guardian ad litem testified that Mother “has a very hard time staying stable in her life, taking care of her own mental health needs over a consistent period of time, and that she had small spurts of success * * * kind of grabs ahold of things for a short while and it looks like she‘s going to gain momentum, and then it just falls off, and then she might start again.” The guardian ad litem‘s written report further detailed that Mother had a history of major depression, histrionic personality disorder, post-traumatic stress disorder, and panic disorder. Mother had unresolved issues with grief and loss and “crippling” panic and anxiety attacks, which sent her to the hospital three times during the course of these proceedings; she had previously attempted suicide two times. According to the guardian ad litem‘s report, Mother took “powerful medications” for her mental health diagnoses, had taken numerous pain medications, and was in “very poor
{¶ 25} The guardian ad litem had not seen any indication that Mother could do what was necessary to accomplish reunification with the children, care for her own medical needs, and stay out of jail (for shoplifting, as discussed below). Mother was noncompliant with many of the services offered to her, as well as with her medications, therapy, and techniques and skills that had been taught to her. Likewise, L.J. (the 10-year-old) was not compliant with his mental health treatment, and the children had very poor attendance at school, while in Mother‘s care.
{¶ 26} The guardian ad litem noted that Mother had been evaluated twice by a psychologist, Dr. Hrinko, who stated after the first evaluation that he believed Mother‘s difficulties could “respond to treatment” and that she could develop the skills to be an effective parent. After the second assessment, however, the guardian ad litem expressed concerns that Dr. Hrinko‘s recommendations were based, at least in part, on inaccurate reporting by Mother. For example, Mother had reрorted to Dr. Hrinko that she had been “actively involved in mental health treatment” since September 2014, an assertion that the guardian ad litem characterized as “simply not true.”
{¶ 27} Mother told the guardian ad litem that L.J. “had significant and ongoing problems his whole life; that he had been medicated; diagnosed with * * * schizophrenia and bipolar; and that he had been violent in the past toward her, had been violent toward [M.J.], and had been really, really difficult.” Mother claimed that these were among reasons she could not get L.J. to school, and she was afraid of L.J.
{¶ 28} The guardian ad litem observed that L.J. had a “severe behavioral history”
{¶ 29} The behavior of M.J., the nine-year-old, also improved significantly in foster care. She went from “screaming for hours” to “significant and noticeable change” with the stability of foster care. M.J. was diagnosed with adjustment disorder attributable to the chaos, inconsistency, and traumatic atmosphere of Mother‘s home and to the abuse Mother suffered in some of her relationships with men, including the childrеn‘s father. Mother acknowledged neither the abuse nor M.J.‘s emotional problems.
{¶ 30} The guardian ad litem testified that she believed the children were adoptable and recommended that CCCS be awarded permanent custody of the children.
{¶ 31} The CCCS caseworkers, Hannah Wenner and Brooke Bodenmiller, testified that CCCS had been involved with Mother several times, specifically in 1993, 1996, and 2009. Throughout these involvements, there had been concerns regarding Mother‘s mental health, her stability, her compliance with services for the children, and the children‘s attendance at school; there had also been several referrals for physical abuse and neglect. Father had not been involved with the family or CCCS at least since the April 2014 removal of the children, and he was reported by Mother now to be living out of the country. In addition to L.J. and M.J., Mother has three older children with a different father or fathers; the oldest two were placed for adoption voluntarily, and the third was placed in the legal custody of the child‘s father.
{¶ 33} Mother‘s case plan focused on the following objectives: Mother was to address her own mental health, including therapy and medication, have a psychological assessment and follow any recommendations given, and complete a drug and alcohol assessment. Mother was also expected to visit with the children regularly and to attend their medical appointments. L.J. and M.J. were to attend counseling as well.
{¶ 34} In March 2014, Mother appeared at the juvenile court as a result of a truancy charge. The probation officer who she was there to see reported that Mother‘s speech was slurred and that she “seemed extremely intoxicated or heavily medicated.” The probation officer was particularly concerned about this behavior because Mother had just dropped off L.J. and M.J. at another location. The probation officers did not allow Mother to walk or drive home because of their concern about her condition, and they called a relative to pick her up.
{¶ 35} According to Wenner, one of the recommendations from Mother‘s psychological evaluation was that she attend intensive counseling, which she did on far fewer occasions than what was rеcommended. With respect to visitation with L.J. and M.J., Wenner reported that Mother canceled many visits; between April and December 2014, Mother completed 20 of 35 scheduled visits. Mother “made a lot of excuses” to
{¶ 36} Wenner reported that Mother had more problems dealing with L.J. than with M.J. because of L.J.‘s mental health issues, and Wenner reported “emotional maltreatment” of L.J., as documented by a “disturbing” tape recording. L.J. attended a program combining education and mental health treatment, rather than a traditional school. When the foster parents advocated for cutting back on L.J.‘s medications because he was always tired and “zombie-like,” Mother resisted the change and stated that she would put L.J. back on the medications if he returned to her care. L.J. was successfully weaned from all but one of his medications during the time that Wenner worked on the case.
{¶ 37} Wenner testified that, at the time she turned the case over to another caseworker, Mother wasn‘t participating in the case plan objectives, including mental health treatment, like she should, and that Mother was “less than truthful” about how she was doing. Wenner believed that Mother was “really overwhelmed” by what was being asked of her and was not able to meet even her own needs. Mother was not working and was receiving Social Security Disability, Section 8 housing, and food stamps; there
{¶ 38} Wenner reported that M.J. was flourishing in foster care and doing well in school and with her counseling. L.J. had had three foster homes since his removal from Mother‘s home; Wenner testified that “it can be difficult to find a foster home that is the right fit,” especially if a child has a lot of behavior issues.
{¶ 39} Mother eventually completed the drug and alcohol assessment required by her case plan but, according to Wenner, it took Mother three months to complete because Mother kept canceling and “always [had] an excuse.” Wenner testified that, in her opinion, granting permanent custody to CCCS was in L.J.‘s and M.J.‘s best interest. “I really just don‘t think she [Mother] has the ability to complete all the things in her case plan. I think her mental health really prevents her from accomplishing things and getting things done.”
{¶ 40} The current caseworker, Brooke Bodenmiller, also testified; she had served as the CCCS caseworker since December 2014. Bodenmiller stated that Mother‘s case plan had been amended to add a parent-child interaction assessment and a review of Mother‘s psychological evaluation, and to allow visits with the children at Mother‘s home with a parent aide. Mother initially made progress on the plan, including attending more (but not all) of her own behavioral health group sessions. Based on Mother‘s progress, CCCS requested an extension of temporary custody in April 2015. But Mother‘s
{¶ 41} Mother did complete a drug and alcohol assessment and kept 9 out of 16 appointments as part of her treatment at Mercy Reach; she “was completed from the program” in January 2015, but Bodenmiller expressed doubt about whether Mother had actually benefitted from the program.
{¶ 42} With respect to visitation, Mother had completed 35 of 58 visits at the Visitation Center in 2014, before the assignment of a parent aide to her case. Since January 2015, Mother had been more consistent, particularly aftеr May 2015; Mother had missed only one visit in which the parent aide was expected to participate. Mother was not compliant, however, with counseling attendance; although Mother reported following through with behavioral health treatment and doing well, the records contradicted her claims. According to Bodenmiller, Mother did not even know who her current counselor was. Mother claimed to have a valid drivers’ license, when in fact she did not. Bodenmiller testified that it was difficult to make face-to-face contact with Mother due to Mother‘s many cancellations of appointments, but that Mother could generally be reached by phone. Bodenmiller was unsure why Mother rеceived Social Security payments and did not work, but she believed it was due to Mother‘s anxiety. Mother told her therapy
{¶ 43} According to Bodenmiller, L.J. was doing well with his current (third) foster placement and his behavior had improved. L.J. was attending a regular public school at the time of the hearing, but a change to a program more like one he had previously attended and which included a component of mental health treatment was being considered. Bodenmiller further testified that M.J.‘s speech had improved and that both children werе consistently attending school, which had been a significant area of concern when they lived with their Mother. Bodenmiller believed that both children were adoptable.
{¶ 44} In sum, Bodenmiller testified that she did not think that L.J. and M.J. could safely be reunited with Mother due to Mother‘s mental health history, L.J.‘s need for mental health treatment, and Mother‘s lack of follow-through with treatment for herself and L.J. Bodenmiller believed that Mother‘s not having custody would allow the children‘s needs to be met more consistently and, by preventing Mother from feeling overwhelmed by her responsibilities, would also better allow Mother to manage her own treatment.
{¶ 45} The parent aide who worked with Mother during this case testified that she began working with Mother and the children in May 2015; Mother‘s initial visits with the children were “okay,” but more recently the visits had been “pretty bad.” L.J. acted disrespectfully, Mother became “agitated or irritable or overwhelmed,” and M.J. did not get any attention because of Mother‘s focus on L.J.‘s bad behavior. Mother made an effort to engage in structured activities with the children, but these activities often did not
{¶ 46} An uncle who helped care for L.J., M.J., and one of the older children when they were removed from Mother‘s home on previous occasions, testified about prior traumas in Mother‘s life, including her own mother‘s suicide in the family home, after which Mother and her siblings had discovered the body. The uncle described this incident as having a “large impact” on Mother‘s life and her mental health issues. He stated that Mother continued to struggle with her own mental health needs.
{¶ 47} The uncle testified that he supported CCCS‘s current motion for permanent custody and that he had not agreed with CCCS‘s decision to return the children to Mother‘s care after a prior period of removal in 2010. The uncle continued to maintain monthly contact with L.J. and M.J. and testified that they were both doing very well in foster care. He stated that the children are “thriving and enjoying what they‘re becoming.” The uncle further testified that L.J. “appreciates the structure that‘s expected of him” at his (the uncle‘s) house and in fostеr care, noting that Mother does not provide structure. L.J. had previously thrown tantrums when he did not get his way. The uncle
{¶ 48} M.J.‘s foster mother also testified that M.J.‘s behavior had improved significantly since she first came to foster care, and that the foster family was willing to consider adoption.
{¶ 49} Mother also testified at the hearing. She stated that she received Social Security Disability based on her “mental health, plus [her] knee.” Mother stated that she had five children by two different men, both of whom were abusive. Her own father was an alcoholic who had recently attempted suicide and, after her mother‘s death by suicide, Mother‘s father had not encouraged her (Mother) to get “mental health assistance.” Mother reported that her mental health diagnoses have “always been bipolar and depression.”
{¶ 50} Mother described L.J.‘s mental health diagnoses as schizophrenia and bipolar disorder. She also testified that the school had recently reported he was experiencing anxiety, which she attributed to CCCS‘s seeking custody. She blamed others for her failure to comply with case plan requirements and/or minimized the problems which formed the basis of those requirements.
The Trial Court Decision
{¶ 51} The trial court found that the children had “improved greatly” since being
{¶ 52} Further, the trial court concluded that Mother was not credible or honest in her testimony or her recounting of events involving the children; she consistently claimed that her inability to complete the case plan and to meet the needs of the children resulted from other people not doing what they were supposed to do or not giving her time to complete the objective. The court found that Mother had consistently failed to visit with the children when she had the opportunity to do so, had failed to attend their medical appointments, and had consistently demonstrated her lack of commitment to the children.
{¶ 53} The court ultimately found that it was in the best interest of the children to grant permanent custody to CCCS because, among other reasons, 1) there was a reasonable probability that they could be adopted and would greatly benefit from a permanent, secure home; 2) there was no probability that Mother would be able to provide a safe, secure and appropriate home for the children anytime soon; 3) Mother had not remedied the conditions that caused the children to be removed from the home; 4) there was no harmonious and loving relationship between the children and Mother or any extended family; and 5) there was no significant risk of harm to the children by not returning to Mother‘s care.
Conclusion
{¶ 54} The trial court‘s findings were supported by the evidence in the record,
{¶ 55} The assignments of error are overruled.
{¶ 56} The judgment of the trial court will be affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Ryan A. Saunders
James S. Armstrong
Lisa J. Niles
Hon. Joseph N. Monnin