In re M.T.
Decided: December 15, 2009
* * * * *
Dan M. Weiss, for appellant.
Jeremy G. Young, for appellee.
* * * * *
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, Juvenile Division, that terminated the parental rights of A.W.1 (“father“) and appellant C.T. (“mother“), the natural parents of M.T., and granted permanent custody of
{¶ 2} “[1]. The trial court committed plain error by failing to appoint a guardian ad litem for the mother-appellant.
{¶ 3} “[2]. The trial court erred when it found by clear and convincing evidence that permanent custody of M.T. should be awarded to Lucas County Children Services Board [sic].”
{¶ 4} M.T. was born in June 2000. Shortly after her birth, LCCS filed a complaint in dependency, citing appellant‘s involvement with the Mental Retardation and Developmentаl Disabilities (“MRDD“) program, her schizoaffective disorder and her seizure disorder as reasons for her inability to care for M.T. At that time, appellant and M.T.‘s father agreed that it would be in the child‘s best interest for legal custody of her to be awarded to appellant‘s foster mother, who agreed to accept custody of the child. In June 2007, the foster mother passed away without naming a guardian for M.T. Initially, the fоster mother‘s adult son cared for the child. Subsequently, however, appellee received a referral alleging that the child had been sexually molested by her stepfather. Upon investigation, appellee discovered that no one had custody of M.T. to sign for her medical care and school matters. In addition, M.T. is autistic and has very limited verbal skills and so she could not adequately articulatе the matters regarding the molestation allegations.
{¶ 6} In February 2008, appellant was located and case plan services were initiated. In addition, the lower court appointed counsel to represent appellant in the proceedings below. As part of her case plan, appellant was referred to substаnce abuse counseling, was asked to submit to a diagnostic assessment for mental health issues, and was referred to domestic violence services. Appellant made little to no progress on her case plan, and on March 20, 2009, appellee filed a motion for permanent custody of M.T. The case proceeded to trial on June 15, 2009, at which the following evidence was presented.
{¶ 7} Appellant had been referred to substance abuse counseling after her urine screens tested positive for marijuana and alcohol. She participated in substance abuse services at the Unison Joint Venture Program but was unable to successfully complete the program. She restarted the program several times, but never could successfully complete
{¶ 8} Appellant‘s mental health and physical health issues dominated the case below. In compliance with the case plan, appellant submitted to a diagnostic assessment for mental health services. She was diagnosed with schizoaffective disorder, bipolar disorder and depression, and has struggled with mental health issues for years. She was then referred to the Zeph Center for mental health services where she regularly met with Judy Janicki, her counselor. She also worked with Lynn Browning, а service and support specialist (“SASS“) with the Lucas County Board of Mental Retardation. Browning testified that she had worked with appellant since November 2007. Browning developed and oversaw an individual service plan for appellant through which appellant obtained providers to assist her in the everyday aspects of her life. In her SASS role, Browning conducts home visits. Browning testified that approximately three weeks before the trial below, she visited appellant at her new home. Appellant was excited to show Browning her home and Browning was anxious to see the environment in which appellant was living. Browning testified that when she arrived at about 3:00 p.m., appellant smelled fairly strongly of alcohol. She also stated that appellant was drinking out of a sippy bottle that she said was diet cokе. Later that day, appellant cancelled a scheduled visit with M.T.
{¶ 10} In addition to the above, parenting was a case plan service identified fоr appellant, but it was stipulated that she complete all of her substance abuse counseling before she start parenting class. Because she never completed her substance abuse counseling, appellant was never able to begin that class. With regard to visitation, appellant‘s attendance was sporadic, visiting consistently from October 2008 until March 2009. Thereafter, appellant missed a number of visits. In addition, she regularly gave excuses, often complaining of physical health problems, including menstrual cramps, for missing the visits. While at the visits, appellant appeared unable to deal with M.T.‘s mood swings and became very frustrated. Although appellant and M.T. appeared very bonded, appellant had not demonstrated an ability to care for M.T.‘s special needs.
{¶ 11} M.T.‘s many special needs were discussed at the trial below as follows. At the time of the trial, M.T. was nine years old. M.T. has autism and physical disabilities that cause her to have trouble using her hands for dressing and toilet training. Since the fall of 2007, when she was placed with a therapeutic foster parent, she has made
{¶ 12} On July 6, 2009, the lower court issued its judgment entry terminating the parental rights of appellant and father and granting permanent custody of M.T. to
{¶ 13} On the issue of M.T.‘s best interest, the court found that M.T. had been in the temporary custody of appellee for 12 or more months of a consecutive 22 month period, that she is in need of a permanent placement that can only be achieved through an award of permanent custody, that she is doing well in her current foster placement, and that due to her autism and mental retardation is unable to competently state her desires regarding where to live. The court therefore found that awarding permanent custody of
{¶ 14} In her first assignment of error, appellant asserts that because of her clearly limited intellectual functioning, the lower court committed plain error in failing to appoint a guardian ad litem to protect her interests. Appellant‘s trial counsel did not request the appointment of a guardian ad litem in the proceedings below. “The failurе to appoint a guardian ad litem does not constitute reversible error where no request for a guardian ad litem is made or the party cannot show prejudice.” In re King-Bolen (Oct. 10, 2001), 9th Dist. Nos. 3196-M, 3231-M, 3200-M, 3201-M. Nevertheless, we will review this issue under the plain error standard.
{¶ 15} The plain error doctrine is embodied in
{¶ 16}
{¶ 17} Pursuant to
{¶ 18} Assuming arguendo that appellant presented the appearance of mental incompetence, the record reflects that her court appointed counsel safeguarded her rights and interests by actively participating in the court proceedings, drawing the court‘s attention to the positive aspects of appellant‘s life as they relate to the statutory factors,
{¶ 19} In her second assignment of error, appellant asserts that the trial court erred in finding by clear and convincing evidence that permanent custody of M.T. should be awarded to appellee.
{¶ 20} The disposition of a child determined to be dependent, neglected or abused is controlled by
{¶ 22} “(2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A) (4) of section 2151.353 * * * of the Revised Code;
{¶ 23} “* * *
{¶ 24} “(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
{¶ 25} “* * *
{¶ 27} Clear and convincing evidence is that proof which establishes in the mind of the trier of fact a firm conviction as to the allegations sought to be proven. Cross v. Ledford (1954), 161 Ohio St. 469. In determining the best interest of the child,
{¶ 28} “(1) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any оther person who may significantly affect the child;
{¶ 29} “(2) 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;
{¶ 30} “(3) 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 consecutivе twenty-two month period ending on or after March 18, 1999;
{¶ 31} “(4) 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;
{¶ 32} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.”
{¶ 33} Upon a thorough review of the record in this case, we conclude that the trial court‘s findings that M.T. could not be placed with appellant within a reasonable time and
{¶ 34} On consideration whereof, the court finds that substantial justice has been done the party complaining and the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this apрeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.