IN RE: S.H.
CASE NOS. CA2014-12-259 CA2015-01-008
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
5/11/2015
[Cite as In re S.H., 2015-Ohio-1763.]
S. POWELL, P.J.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2013-0032
Nichole M. Stephenson, 30 North D Street, Hamilton, Ohio 45013, for appellant, D.H.
Liza A. Kotlarsic, 8050 Beckett Center Drive, Suite 130, Cincinnati, Ohio 45069, for appellant, J.L.
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. Kasten, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler County Children Services
O P I N I O N
S. POWELL, P.J.
{¶ 1} Appellants, the biological parents of S.H., hereinafter referred to individually as Mother and Father, appeal from a decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of their daughter to appellee, the Butler County Department of Job and Family Services, Children Services Division (BCDJFS). For the reasons outlined below, we affirm.
{¶ 3} On March 5, 2013, the juvenile court held a settlement conference, wherein Mother stipulated to S.H. being adjudicated a dependent child. It is undisputed that Father did not appear at this settlement conference, or any of the other hearings before the juvenile court, thus prompting the juvenile court to find him in default. The juvenile court then held a dispositional hearing on April 12, 2013. During this time, the juvenile court adopted a case plan relative to Mother that required her to undergo random drug testing, obtain stable housing and employment, and attend substance abuse treatment, as well as individual and family counseling. Mother was also ordered to undergo a psychiatric evaluation. Mother, however, did not complete a number of the required case plan services, including her substance abuse and mental health treatments.
{¶ 4} On February 27, 2014, over a year after S.H. was originally placed in foster care, BCDJFS filed a motion requesting permanent custody of the child. A two-day permanent custody hearing was then conducted before a juvenile court magistrate on July 11 and August 21, 2014, respectively. As part of this two-day hearing, the magistrate heard
{¶ 5} Mother and Father now appeal from the juvenile court‘s decision granting permanent custody of their daughter to BCDJFS, collectively raising three assignments of error for review. For ease of discussion, Father‘s two assignments of error will be addressed together.
Father‘s Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING [BCDJFS‘S] MOTION FOR PERMANENT CUSTODY.
Father‘s Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING THE STATE‘S MOTION FOR PERMANENT CUSTODY.
{¶ 10} In his two assignments of error, Father argues the juvenile court‘s decision granting permanent custody of S.H. to BCDJFS was not in his daughter‘s best interest when
{¶ 11} Before a natural parent‘s constitutionally protected liberty interest in the care and custody of his or her child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 11, citing Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court‘s review of a juvenile court‘s decision granting permanent custody is limited to whether sufficient credible evidence exists to support the juvenile court‘s determination. In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6; In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). Thus, a reviewing court will reverse a finding by the juvenile court that the evidence was clear and convincing only if there is a sufficient conflict in the evidence presented. In re S.U., 12th Dist. Clermont No. CA2014-07-055, 2014-Ohio-5748, ¶ 10. Clear and convincing evidence is “‘that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.‘” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 12} Pursuant to
{¶ 13} In this case, the juvenile court found by clear and convincing evidence that Father had abandoned his daughter given his testimony that he had not had any contact with the child in over two years, his last visit occurring sometime in 2012. The juvenile court also found by clear and convincing evidence that S.H. could not be placed with either Mother or Father within a reasonable time, nor should S.H. be placed with either Mother or Father. In reaching this decision, the juvenile court noted Mother‘s repeated failures to complete or participate in a number of her required case plan services, including substance abuse treatment to combat her admitted heroin addiction. Neither Mother nor Father disputes these findings. Rather, as noted above, Mother and Father merely dispute the juvenile court‘s decision finding it was in S.H.‘s best interest to grant permanent custody to BCDJFS when considering the factors provided under
[T]he court shall consider all relevant factors, including, but not limited to the following:
(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 * * *;
(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 relation to the parents and child.
{¶ 15} With respect to
{¶ 16} As it relates to Mother, the juvenile court found Mother‘s attendance during her
{¶ 17} Due to these issues, as well as reported concerns regarding Mother‘s inappropriate discussions with S.H. about her current foster care placement, Mother‘s level of supervision during her visitation time increased to the highest level of supervision possible. Since that time Mother only attended half of her scheduled supervised visits with S.H. The juvenile court also found that, although S.H. looked forward to her visits with Mother, S.H. would oftentimes suffer from nightmares after visiting with Mother. The juvenile court further noted the fact that S.H. did not express any desire to spend more time with Mother.
{¶ 18} The juvenile court also found S.H. had limited supervised contact with her paternal grandmother, J.A. However, after Mother upset S.H. by telling her she would be placed in her grandmother‘s custody, J.A.‘s visits with S.H. were reduced to only one time per month. The juvenile court further found that prior to S.H. being removed from Mother‘s care, J.A. had not had any contact with S.H. for approximately eight months. As a result, the juvenile court found a “significant period of time has passed since the two have had any significant time together.”
{¶ 19} In regards to her foster placement, the juvenile court found S.H. had struggled in her initial foster placement, acting out after her visits with Mother. However, once her
{¶ 20} In consideration of
[S.H.] just turned five years old. She was placed in foster care at the age of three. She has spent nearly half of her life outside the care of her parents. Through much of this case [S.H.‘s] speech made it very difficult to communicate with her. And while her speech has improved, she has been placed on an IEP and will delay kindergarten a year to continue improving in this area. Due to her age and these limitations it has been difficult to have any meaningful conversation with [S.H.] regarding these proceedings. At most [S.H.] will report that she likes living with [her foster parents] and that visits with [Mother] are good.
The juvenile court further noted it had considered the guardian ad litem‘s report and recommendation that it was in S.H.‘s best interest to be placed in the permanent custody of BCDJFS.
{¶ 21} With regard to
{¶ 22} In addition, in consideration of
{¶ 23} Continuing, the juvenile court found Mother had repeatedly failed her case plan services, including multiple failed attempts at substance abuse treatment, individual counseling, and family therapy. In fact, when asked if she was still struggling with her heroin
{¶ 24} After carefully reviewing the record in this case, we find the juvenile court‘s findings are supported by sufficient, credible evidence and are otherwise not against the manifest weight of the evidence. Nevertheless, Father argues the juvenile court‘s decision was not in S.H.‘s best interest when considering the strong bond and love shared between S.H., Mother, and S.H.‘s paternal grandmother, J.A. However, although a strong bond may very well exist, this is but one factor to be considered when determining the best interest of a child in a permanent custody proceeding. In re I.B., 2015-Ohio-1344 at ¶ 20. Moreover, it is well-established that “R.C. 2151.414(D) does not give one factor ‘greater weight than the others.‘” In re C.G., 10th Dist. Franklin Nos. 13AP-632 and 13AP-653, 2014-Ohio-279, ¶ 37, quoting In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56; In re D.R., 12th Dist. Butler No. CA2009-01-018, 2009-Ohio-2805, ¶ 14. Father‘s claim to the contrary is therefore without merit.
{¶ 25} Father also argues the juvenile court‘s decision was not in S.H.‘s best interest as there was “not clear and convincing evidence that [Mother] failed at her attempts to remedy her situation.” Father, however, fails to take into account the undisputed and uncontroverted testimony indicating Mother had repeatedly failed to complete her substance abuse and mental health treatments, as well as issues regarding stable housing and income. The record also reveals Mother had relapsed several times and started using heroin while
{¶ 26} Father further argues that Mother should not lose custody of S.H. because she is a “fantastic” mother. Yet, based on his own testimony, Father has not even been in the same state as Mother for the past several years, let alone been given the opportunity to observe her parenting skills. Moreover, as the juvenile court found, and with which we certainly agree, “[Mother] has clearly not remedied any of the conditions which led to the removal of this child, nor based on her past history and quality of participation in services, does not bode well for her future.” These conditions include her admitted heroin addiction, potential untreated mental health issues, lack of stable housing and driver‘s license, as well as her limited income and employment opportunities. Father‘s claims to the contrary are once again without merit.
{¶ 27} Finally, Father argues the juvenile court‘s decision was not in S.H.‘s best interest because “both he and his mother, [J.A.], were also viable options that the Court could have and should have considered for placement.” However, as it relates to Father, the juvenile court found he had effectively abandoned his daughter given the fact that he had not had any contact with S.H. since 2012. Furthermore, as it relates to J.A., the juvenile court found she was not a viable option considering her home study failed, in part, due to concerns regarding her husband‘s attempted suicide. Although J.A. claimed she separated from her husband in order to obtain custody of S.H., as noted above, the juvenile court found J.A.‘s claims were “self-serving and entirely questionable as to its legitimacy[.]” Father‘s final claim is therefore without merit.
{¶ 28} In light of the foregoing, and after a thorough review of the record, we find the juvenile court properly considered the appropriate factors under
Mother‘s Assignment of Error No. 1:
{¶ 30} THE TRIAL COURT VIOLATED S.H.‘S DUE PROCESS RIGHTS BY FAILING TO DETERMINE IF S.H. NEEDED INDEPENDENT COUNSEL.
{¶ 31} In her single assignment of error, Mother argues the juvenile court erred by failing to inquire as to whether S.H.‘s wishes differed from that of the guardian ad litem, thereby requiring the appointment of independent counsel for her. Neither Mother nor Father, however, raised this issue as part of their objections to the magistrate‘s decision.
{¶ 32} As this court has stated previously, pursuant to
{¶ 34} Furthermore, as BCDJFS accurately states in its brief, the record is devoid of any evidence that either Mother or Father ever challenged the ability of the guardian ad litem to serve in her dual capacity as attorney and guardian ad litem for S.H. As stated by the Ninth District Court of Appeals in In re K.H., 9th Dist. Summit No. 22765, 2005-Ohio-6323, at ¶ 41,“where no request was made in the trial court for counsel to be appointed for the children, the issue will not be addressed for the first time on appeal.” Other courts have held the same. See In re Yates, 11th Dist. Geauga No. 2008-G-2836, 2008-Ohio-6775, ¶ 48; In re Graham, 4th Dist. Athens No. 01CA57, 2002-Ohio-4411, ¶ 31-33; In re Brittany T., 6th Dist. Lucas No. L-01-1369, 2001 WL 1636402, *6 (Dec. 21, 2001). Just as the Ninth District before us, this court is also “not inclined to reward a parent for sitting idly on her rights by addressing an alleged error that should have been raised, and potentially rectified, in the trial court in a much more timely fashion.” In re T.E., 9th Dist. Summit No. 22835, 2006-Ohio-254, ¶ 9.
{¶ 35} Regardless, even if this issue was not waived, we would still find no error, let alone plain error, in regards to Mother‘s claim. Generally, when an attorney is appointed as guardian ad litem, such as the case here, that attorney may also act as counsel for the child, absent a conflict of interest. In re C.E.J., 12th Dist. Butler No. CA2013-04-059, 2014-Ohio-2713, ¶ 19. The role of a guardian ad litem is to investigate the child‘s situation and then ask the juvenile court to do what is in the child‘s best interest, while the role of an attorney is to zealously represent his client within the bounds of the law. In re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985). In turn, because the guardian ad litem is permitted to maintain dual roles, a juvenile court is not required to appoint separate counsel unless the guardian ad litem‘s recommendations regarding best interest conflict with the children‘s wishes. In re B.K., 12th Dist. Butler No. CA2010-12-324, 2011-Ohio-4470, ¶ 19; In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500. This occurs only when the child has “consistently and repeatedly expressed 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.
{¶ 36} Here, Mother argues the juvenile should have inquired as to whether S.H.‘s wishes differed from that of the guardian ad litem given her strong bond with Mother and “[t]he fact that S.H. consistently asked to return home with Mother during visitation[.]” Yet, in making this claim, Mother ignores the testimony from S.H.‘s foster mother who explicitly stated S.H. had not expressed a desire to be with or spend more time with Mother. Furthermore, as the record makes clear, due to her young age and speech delays, S.H. was unable to have any meaningful conversation wherein she could effectively express her wishes. Again, as the guardian ad litem stated in her report and recommendations:
[S.H.] just turned five years old. She was placed in foster care at the age of three. She has spent nearly half of her life outside the care of her parents. Through much of this case [S.H.‘s] speech made it very difficult to communicate with her. And while her speech has improved, she has been placed on an IEP and will delay kindergarten a year to continue improving in this area. Due to her age and these limitations it has been difficult to have any meaningful conversation with [S.H.] regarding these proceedings. At most [S.H.] will report that she likes living with [her foster parents] and that visits with [Mother] are good.
{¶ 37} Furthermore, contrary to Mother‘s claim otherwise, the law does not require a juvenile court to inquire whether a child‘s wishes differ from that of the guardian ad litem‘s recommendations where there was nothing to indicate such a conflict exists. Again, as stated by the Ninth District in In re N.G., 9th Dist. Lorain No. 12CA010143, 2012-Ohio-2825, “we will not speculate that there may have been a conflict between the wishes of the child and the recommendation of guardian ad litem absent an affirmative demonstration of such a conflict on the record.” Id. at ¶ 18, citing In re D.H., 177 Ohio App.3d 246, 2008-Ohio-3686 ¶ 42 (8th Dist.). This is further heightened by the fact that a dually appointed attorney acting as guardian ad litem has an affirmative duty to report the existence of a conflict of interest between his or her role as attorney and guardian ad litem to the juvenile court. In re Baby Girl Baxter, 17 Ohio St.3d at 232. Therefore, Mother‘s single assignment of error is overruled.
{¶ 38} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.