IN RE: L.M.L.
CASE NO. 2016-P-0069
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
August 28, 2017
2017-Ohio-7451
COLLEEN MARY O‘TOOLE, J.
Appeal from the Portage County Court of Common Pleas, Juvenile Division, Case No. 2015 JCC 00235. Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Brandon J. Wheeler, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee Portage County Department of Job and Family Services).
Michael A. Noble, Lentz, Noble & Heavner, LLC, 228 West Main Street, Ravenna, OH 44266 (For Appellees Mark and Brenda Wakefield).
Richard C. Lombardi, 240 South Chestnut Street, Suite B, Ravenna, OH 44266 (Guardian ad litem).
OPINION
COLLEEN MARY O‘TOOLE, J.
{¶1} Appellant, Tiffany L. Spencer (“Mother“), appeals from the September 29, 2016 judgment of the Portage County Court of Common Pleas, Juvenile Division,
{¶2} Mother is the biological mother of L.L.S., d.o.b. March 21, 2005, and L.M.L., d.o.b. March 7, 2007 (collectively “minor children“).1 This appeal, Case No. 2016-P-0069, involves L.M.L. Mother‘s companion appeal, Case No. 2016-P-0068, involves L.L.S. Mother‘s arguments in both appeals are the same. The biological father of the minor children is Ronald Lemin (“Father“). Father is not a named party in either appeal.
{¶3} On March 24, 2015, the minor children were removed from Mother‘s care, custody, and control after the Portage County Drug Task Force found a methamphetamine lab in the garage of their residence.2 The next day, appellee, Portage County Department of Job and Family Services (“PCDJFS“) filed complaints alleging that the minor children were abused, neglected, and dependent.3
{¶4} Attorney Richard C. Lombardi (“GAL“) was appointed as guardian ad litem and attorney for the minor children. The juvenile court also appointed separate counsel for Mother.
{¶5} A shelter care hearing was subsequently held. The minor children were placed in the interim pre-dispositional custody of PCDJFS. On May 14, 2015, the minor children were found to be dependent.
{¶7} In September 2015, Mother and Father filed motions for legal custody. However, both Mother and Father withdrew those motions later that year.
{¶8} On December 14, 2015, the GAL filed a report indicating the following: he met with the parties at various times; he met and interviewed the minor children; he met and interviewed the maternal grandmother; he met, interviewed, and inspected the home of the Wakefields, the minor children‘s maternal uncle and aunt; he spoke with psychologists and counselors and reviewed reports; he met with Mother and Father; he attended Family Team Meetings; he interviewed Kevin and Lora Labbe (“the Labbes“), who are good family friends with Mother and have a very good relationship with the minor children, who have stayed at their home frequently and are a potential placement for L.L.S.; and recommended granting legal custody of L.M.L. to the Wakefields.
{¶9} In addition, a December 14, 2015 case review reveals Mother scored an “8” on the risk re-assessment scale of abuse/neglect regarding her parenting of the minor children, i.e., an actual risk level of “high.”
{¶10} Following a monthly home visit by the caseworker and GAL, on March 2, 2016, PCDJFS filed a motion for adoption of permanency plan, to grant legal custody of L.L.S. to the Labbes (non-relatives) and L.M.L. to the Wakefields (relatives). As Mother was not in agreement with the plan, she filed another motion for legal custody on March 10, 2016. A week later, PCDJFS filed a motion for change of custody (regarding L.L.S.
{¶11} On March 18, 2016, a semiannual administrative review was filed. That review revealed the following: Mother was not consistent with counseling; Mother and Father lack financial support for the minor children; Mother and Father have placed the minor children in unsafe situations and circumstances; Mother continues to make poor choices for herself and for the minor children; the minor children have been exposed to unsafe, unstable, and harmful environments; the minor children were directly exposed to being in the presence of a documented unsafe individual (Mother‘s boyfriend); and Mother lacks stable housing and has moved three times since the minor children were removed.
{¶12} On May 12, 2016, the GAL filed a report indicating the following: Mother was reported, and did not deny, to be purchasing large amounts of Sudafed, a key component of manufacturing methamphetamines; Mother had been charged shortly before the raid at issue for obstructing official business and complicity to commit theft; the family residence was in disarray; the minor children were upset and crying; clothes and mattresses were scattered all over the floor; Mother continues to deny there was a meth lab in their garage; since Mother‘s oldest child was born in 2005, Mother had moved approximately 20 times; and Mother‘s last residence is a dump filled with the stench of dog manure. The GAL recommended that it is in the minor children‘s best interest to be placed into the legal custody of their respective placements with L.M.L. remaining with the Wakefields and L.L.S. remaining with the Labbes.
{¶14} At the hearing, testimony was taken from the following: Alexandria Bevere, a social worker with PCDJFS; Mother; the Wakefields; and Lora Labbe. Under Mother‘s care, the minor children had hygiene issues, had behavioral problems, and performed poorly in school. After L.M.L.‘s placement with the Wakefields and L.L.S.‘s placement with the Labbes, the minor children no longer have hygiene issues, their behavioral problems were rectified, their skills have dramatically increased, they receive good grades in school, and are now involved in extracurricular activities. Since the removal of the minor children from Mother‘s care, both children have thrived personally, socially, and academically. Both the Wakefields and the Labbes provide the minor children with stable, consistent, and nurturing environments. The minor children have bonded with their respective custodians. The Wakefields and the Labbes are open to Mother improving her relationship with the minor children and support Mother‘s recovery efforts. L.M.L. advised the GAL she wants to reside with the Wakefields. L.L.S. has told the GAL she wants to reside with Mother or the Labbes. It was revealed that L.L.S. made statements about wanting to live with Mother because she was scared of hurting Mother‘s feelings.
{¶16} Following a hearing, on September 29, 2016, the juvenile court overruled Mother‘s objections and adopted the magistrate‘s decision. The court ordered that it is in the minor children‘s best interest for L.L.S. to be placed in the legal custody of the Labbes and for L.M.L. to be placed in the legal custody of the Wakefields. Mother filed timely appeals and raises the following two assignments of error:5
{¶17} “[1.] The Trial Court erred, and abused its discretion, when it affirmed the Magistrate‘s Decision to award legal custody of minor children L.L.S. and L.M.L. to parties other than Appellant.
{¶18} “[2.] The Trial Court abused its discretion in not granting Appellant‘s motion to appoint new counsel for the minor child L.L.S.”
{¶19} In her first assignment of error, Mother argues the juvenile court abused its discretion in adopting the magistrate‘s decision and awarding legal custody of L.L.S. to the Labbes and L.M.L. to the Wakefields. Because this appeal only involves L.M.L., this court will only address and provide a merit analysis as to that child in this opinion.
{¶20} “In reviewing a trial court‘s decision to adopt or reject a magistrate‘s decision, an appellate court looks for abuse of discretion. Hayes v. Hayes, 11th Dist. No. 2005-L-138, 2006-Ohio-6538, at ¶10.” In re Wiley, 11th Dist. Portage No. 2008-P-0062, 2009-Ohio-290, ¶20. “‘A juvenile court‘s grant of legal custody is [also] reviewed
{¶21} “The Ohio Supreme Court has recognized that ‘parents who are suitable persons have a “paramount” right to the custody of their minor children.’ In re Murray (1990), 52 Ohio St.3d 155, 157 (citations omitted). However, ‘(a) juvenile court adjudication of abuse, neglect, or dependency is a determination about the care and condition of a child and implicitly involves a determination of the unsuitability of the child‘s custodial and/or noncustodial parents.’ In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, paragraph two of the syllabus. Accordingly, ‘the fundamental or primary inquiry at the dispositional phase of (* * *) juvenile proceedings is not whether the parents of a previously adjudicated “dependent” child are either fit or unfit,’ rather, it is ‘the best interests and welfare of the child (that) are of paramount importance.’ In re Cunningham (1979), 59 Ohio St.2d 100, 106 (emphasis sic); In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, at ¶11 (‘(o)nce the case reaches the disposition phase, the best interest of the child controls‘).
{¶23} In this case, Mother points out that during the pendency of the matters involving L.M.L. and D.A.G., she gave birth to another child, N.L.W. Mother stresses it defies common sense that L.M.L. was removed from her care since N.L.W., her newborn, was not. Mother also stresses she complied with the case plan. As such, it is Mother‘s position that the juvenile court abused its discretion in granting legal custody of L.M.L. to a third party.
{¶24} Regarding Mother‘s argument that because N.L.W. was in her care, then she is fit for custody of L.M.L. However, the Ohio Supreme Court has held that the primary factor of paramount importance in dependency/custody matters is the best interests of the child, not the fitness of the parent. In re Cunningham, supra, at 106; In re D.A., supra, at ¶11. The best interest of L.M.L. is a separate matter from the best interest of another, newborn, child.
{¶25} As stated, L.M.L. was removed from Mother‘s care, custody, and control after the Portage County Drug Task Force found a methamphetamine lab in the garage of their residence. Mother was pregnant with N.L.W. during that time. A December
{¶26} A March 2016 semiannual administrative review revealed the following: Mother was not consistent with counseling; Mother and Father lack financial support for L.M.L.; Mother and Father have placed L.M.L. in unsafe situations and circumstances; Mother continues to make poor choices for herself and for L.M.L.; L.M.L. has been exposed to unsafe, unstable, and harmful environments; L.M.L. was directly exposed to being in the presence of a documented unsafe individual (Mother‘s boyfriend); and Mother lacks stable housing and has moved three times since L.M.L. was removed.
{¶27} A May 2016 GAL report indicated the following: Mother was reported, and did not deny, to be purchasing large amounts of Sudafed, a key component of manufacturing methamphetamines; Mother had been charged shortly before the raid at issue for obstructing official business and complicity to commit theft; the family residence was in disarray; L.M.L. was upset and crying; clothes and mattresses were scattered all over the floor; Mother continues to deny there was a meth lab in their garage; since Mother‘s oldest child was born in 2005, Mother had moved approximately 20 times; and Mother‘s last residence is a dump filled with the stench of dog manure.
{¶28} At the May 2016 change of custody hearing, the following testimony was revealed: under Mother‘s care, L.M.L. had hygiene issues, behavioral problems, and performed poorly in school; after L.M.L.‘s placement with the Wakefields, L.M.L. no longer has hygiene issues, her behavioral problems were rectified, her skills have dramatically increased, she receives good grades in school, and is now involved in extracurricular activities; since the removal of L.M.L. from Mother‘s care, she has thrived
{¶29} L.M.L. advised the GAL that she wants to reside with the Wakefields. The GAL recommended that it is in L.M.L.‘s best interest to be placed into the legal custody of her respective placement with L.M.L. remaining with the Wakefields. Based on the facts presented, the juvenile court properly relied upon witness testimony and the GAL‘s reports and recommendations.
{¶30} Regarding Mother‘s argument that because she completed the case plan objectives, legal custody of L.M.L. should not have been granted to a third party. This court, in a permanent custody/termination of parental rights case which consists of a higher burden of persuasion, previously addressed the question of whether a biological parent who has completed case plan objectives should be given preference over a non-parent. In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293. This court answered that question in the negative by stating the following:
{¶31} “While the parents’ progress is measured in part by their completion of the case plan goals, the case plan is not the only measure by which a court determines whether to grant a motion for permanent custody. Substantial compliance with a case plan, without more, does not entitle a parent to custody. In re Calvert Children, 9th Dist. Nos. 05-CA-19, 05-CA-20, 2005-Ohio-5653, ¶74. The main issue considered by the courts is not whether the parent has substantially complied with the case plan, but, rather, whether the parent has substantially remedied the conditions that caused the
{¶32} Upon review and as addressed, the juvenile court did not abuse its discretion in adopting the magistrate‘s decision and awarding legal custody of L.M.L. to the Wakefields.
{¶33} Mother‘s first assignment of error is without merit.
{¶34} In her second assignment of error, Mother contends the juvenile court abused its discretion in not granting her oral motion to appoint new, separate counsel for L.L.S. at least, and perhaps for L.M.L. as well. As previously indicated, because this appeal only involves L.M.L., this court will only address and provide a merit analysis as to that child in this opinion.
{¶35} “Pursuant to
{¶36}
{¶37} “(H) If the guardian ad litem for an alleged or adjudicated abused, neglected, or dependent child is an attorney admitted to the practice of law in this state, the guardian ad litem also may serve as counsel to the ward. Until the supreme court adopts rules regarding service as a guardian ad litem that regulate conflicts between a person‘s role as guardian ad litem and as counsel, if a person is serving as guardian ad litem and counsel for a child and either that person or the court finds that a conflict may exist between the person‘s roles as guardian ad litem and as counsel, the court shall relieve the person of duties as guardian ad litem and appoint someone else as guardian ad litem for the child.” (Emphasis added.)
{¶38} Similarly,
{¶39} “(C) Guardian ad Litem as Counsel.
{¶40} “(1) When the guardian ad litem is an attorney admitted to practice in this state, the guardian may also serve as counsel to the ward providing no conflict between the roles exist.
{¶42} In the instant matter, the record establishes that the GAL was specifically appointed as guardian ad litem and attorney for L.M.L. Thus, a dual appointment existed and L.M.L. was with legal representation. Our review of the record reveals that no conflict existed requiring the appointment of new counsel.
{¶43} L.M.L.‘s age, circumstance, and statement do not reveal any conflict giving rise to any need for new, separate counsel. As stated, L.M.L. advised the GAL that she wants to reside with the Wakefields. No conflict requiring the appointment of new, separate counsel for L.M.L. arose in this case. The plain language of
{¶44} In determining the best interest of L.M.L., the juvenile court properly relied upon the GAL‘s reports and recommendations that L.M.L. be placed in the legal custody of the Wakefields. Thus, the court did not err in denying Mother‘s oral request to appoint new, separate counsel since the GAL had a dual appointment, L.M.L.
{¶45} Mother‘s second assignment of error is without merit.
{¶46} For the foregoing reasons, Mother‘s assignments of error are not well-taken. The judgment of the Portage County Court of Common Pleas, Juvenile Division, is affirmed.
CYNTHIA WESTCOTT RICE, P.J., concurs
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
{¶47} I concur in judgment only as the grant of legal custody with respect to L.M.L. is addressed and affirmed in the related case of In re L.L.S., 11th Dist. Portage No. 2016-P-0068, thereby rendering the present opinion duplicative and, as a practical matter, dicta.