In re S.S.
Rendered on October 16, 2012
Linda K. Allison, Guardian ad Litem for S.S., A.L., and N.L.; and Phyllis Rowan, for S.S.
Nicholas J. Walstra, for appellee, Franklin County Children Services.
William T. Cramer, for appellant.
APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
BROWN, P.J.
{¶ 1} C.S. (“mother“), appellant, appeals from judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in which the court granted the motion of Franklin County Children Services (“FCCS“), appellee, for permanent custody with regard to mother‘s three minor children, S.S., N.L., and A.L.
{¶ 3} On June 30, 2009, S.S. was adjudicated to be abused, neglected, and dependent, the twins were adjudicated to be dependent, and the children remained in the temporary custody of FCCS. The court then adopted a case plan, which included requirements that mother complete a drug and alcohol assessment and follow all resulting recommendations, complete random urine screens, complete a psychological evaluation and follow all resulting recommendations, maintain stable income, provide safe and stable housing, and complete a domestic violence assessment and follow resulting recommendations. On March 16, 2010, FCCS filed a motion seеking permanent custody but later withdrew the motion, and a six-month extension was granted. On November 15, 2010, another six-month extension was granted. None of the alleged fathers of any of the children has established paternity or has ever entered an appearance in the case.
{¶ 4} On March 15, 2011, FCCS filed another motion for permanent custody. After a seven-day trial over the span of several months, the trial court granted FCCS‘s motion for permanent custody. Mother appeals the judgments of the trial court, asserting the following assignments of error:
[I.] The juvenile court‘s conclusion that it was in the best interests of the children to grant permanent custody to Franklin County Children Services was not supported by clear and convincing evidence.
[II.] S.S. was denied the effective assistance of counsel because appointed counsel failed to advocate for her wishes.
{¶ 6} A decision to award permanent custody requires the trial court to take a two-step approach. First, pursuant to
(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, or has not been in the temporary custody of one or more public children services аgencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period if, 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, 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 nо 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, thechild was previously in the temporary custody of an equivalent agency in another state.
{¶ 7} Once the trial court finds that one of the circumstances in
{¶ 8} With regard to the first step of the permanent custody analysis, mother does not contest that the trial court correctly determined that the children had been in the custody of FCCS for 12 months or more of a consecutive 22-month period prior to the hearing. Thus,
{¶ 9} Mother contests only thе trial court‘s findings regarding the best interest factors.
{¶ 10} In her brief, mother first contests the trial court‘s findings under
{¶ 11} Mother contends that the triаl court completely ignored that, during the in-camera hearing, S.S. said she did not want to live with the foster parents and indicated a desire to go home with her mother. Mother asserts that, at trial, the GAL tried to “explain this away” by insisting that S.S. consistently told the GAL that she wanted to live with the foster parents. Mother emphasizes that the trial court appointed S.S. separate counsel due to a perceived conflict between S.S.‘s and the GAL‘s views, so it is difficult to believe that S.S. “consistently” told the GAL that she wanted to live with the foster parents. Mother also points out that FCCS‘s transportation worker testified that S.S. regularly said she wanted to spend more time with mother. Mother further points out that the transportation worker testified that the visits with mother went well, despite the fact that the GAL said they went poorly, thereby undermining the GAL‘s credibility generally.
{¶ 12} Our review of the in-camera interview, GAL‘s testimony, and transportation provider‘s testimony reveals the following. During the in-camera interview, S.S. first stated she would like to live with the foster mother. She said she did not like it when her mother cancelled visits, and it made her feel sad. She said she would be sad if she could not ever see her mother again, and she would be sad if she lived with the twins and the foster mother but could never see her mother again. When askеd what was good about living with the foster mother, she responded, “nothing.” When asked what would be good about living with her mother, she responded, “nothing.” S.S. and her attorney also engaged in the following exchange during the in-camera interview:
ATTORNEY ROWAN: And – and if you – if you – if you get to choose, would you like to stay there?
[S.S.]: Stay where?
ATTORNEY ROWAN: With [foster mother].
[S.S.]: (Non-verbal response).
ATTORNEY ROWAN: Pardon? What is that a yes or [no]?
[S.S.]: Un-un (negative response).
ATTORNEY ROWAN: Is that a yes or no?
[S.S.]: No.
ATTORNEY ROWAN: You aren‘t; not sure or you don‘t?
[S.S.]: Not – not sure.
ATTORNEY ROWAN: Well, if you get to stay with your brothers at [foster mother] – at [foster mother‘s] house; what‘s the dad‘s name?
[S.S.]: [Foster dad‘s name].
ATTORNEY ROWAN: [Foster dad‘s name]. Do you call him dad or do you call him [foster dad‘s name] or daddy?
[S.S.]: Papa.
ATTORNEY ROWAN: Papa. And do you think you would get to finish enjoying all your drawing and gymnastics if you get to stay there?
[S.S.]: Yeah.
ATTORNEY ROWAN: Does that make you happy; would that make you happy?
[S.S.]: Uh-huh (affirmative response). And my mom is going to let me do gymnastics too.
ATTORNEY ROWAN: Uh-huh (affirmative response).
[S.S.]: She‘s going to let me do everything I did with [foster mother].
ATTORNEY ROWAN: Oh, really; okay.
[S.S.]: She‘s a nice mom.
ATTORNEY ROWAN: Oh, is that what she told you?
[S.S.]: Uh-huh (affirmative response).
ATTORNEY ROWAN: Okay. Did you do that before, when you were with your mom?
[S.S.]: (Non-verbal response).
[LAY GAL]: Where do you think [the twins] want to live?
[S.S.]: With my mom.
[LAY GAL]: With which mom?
[S.S.]: Our mom.
[LAY GAL]: [Foster mom]?
[S.S.]: Uh-huh (affirmative response).
(July 28, 2011 Tr., 48-50.)
{¶ 14} Tahira Craft, a social service aide for FCCS, testified that, when she was driving S.S. after a visit with her mother on October 11, 2011, S.S. told her that she wanted to spend more time with her mother, and S.S. repeatedly told Craft that she wanted to see her mother more. Craft also testified that, during the ten times she observed visitations, mother had appropriate, safe, and positive interactions with the children, was able to feed them, and was able to prepare them for bed.
{¶ 15} Initially, it is apparent that the trial court propеrly found under
{¶ 16} Mother‘s main argument is actually a credibility argument. Mother attempts to discredit the GAL‘s testimony by pointing out Craft‘s testimоny and the fact that the trial court appointed a separate attorney for S.S. However, credibility was for the finder of fact, as the trial court was best able to view the GAL and determine whether her testimony seemed truthful. See Lumley v. Lumley, 10th Dist. No. 09AP-556, 2009-Ohio-6992, ¶ 46, citing Galloway v. Khan, 10th Dist. No. 06AP-140, 2006-Ohio-6637, ¶ 70 (as the fact finder, the trial court determines the GAL‘s credibility). Because assessment of the credibility and weight of the evidence is reserved for the trial court, we will not second guess a court‘s decision regarding a GAL‘s testimony and recommendatiоn. Id., citing Davis v. Flickinger, 77 Ohio St.3d 415, 419 (1997) (the determination of credibility of
{¶ 17} As for Craft‘s testimony, Craft merely reiterated what the GAL stated; that is, S.S. liked spending time with her mother. Craft did not testify that S.S. told her that she desired to live with mother permanently or that she did not want to live with the foster parents permanently. In this regard, Craft‘s testimony neither contradicts the GAL‘s testimony nor contributes to the analysis under
{¶ 18} As to mother‘s argument that the trial court erred when it completely ignored S.S.‘s in-camera statements that she did not want to live with the foster parents and desired to go home with her mother, we fail to see where S.S. made such an indication. Our own review of S.S.‘s statements reveals that they were vague, wavering, and non-committal with regard to where she wanted to live. The trial court also commented after S.S.‘s interview that she seemed distracted, and the GAL agreed. Because S.S. never clearly stated her wishes in the in-camera interview, it is understandable why the trial court did not comment on them in its findings. Therefore, we can find no error in the trial court‘s finding with regard to the best interest factor under
{¶ 19} Mother also contends that the trial court erred when it found mother‘s ability to parent was hampered by alcohol abuse and mental instability. We first note that the findings cited by mother in her brief were not part of thе best interest analysis but, rather, were part of the unnecessary findings under
{¶ 20} Under
{¶ 21} With regard to the trial court‘s finding with respect to drug and alcohol use under
{¶ 22} With regard to mother‘s mental health under
{¶ 23} Mother argues that her mental health status was never the problem. Mother asserts that it was always her mental capacity – her ability to learn and adapt – that caused her difficulties, and the trial court did not understand the nature of the problem. We disagree. The trial court‘s explicit findings acknowledged mother‘s limited cognitive skills and addressed her inability to understand the developmental levels of her children and to learn how to care for the children. The trial court‘s conclusions, in this respect, were supported by the record. Hoffman, a caseworker, testified she did not believe mother applied to visitations what she learned at her parenting classes. Also, Blevins saw no improvement in mother‘s parenting skills for the two and one-half years she observed mother. Blevins also testified that a worker from Berea Family Services did a lot of parental “modeling” and demonstrations for mother, but Blevins never saw mother emulating the worker‘s actions. The Berea employee also tried to get mother to plan activities for future visits, but mother would still fail to prepare activities before arriving at the next visits. Blevins testified thаt she also told mother repeatedly to fix certain things in her house to make them less dangerous for the children, but she would not implement them.
{¶ 24} There was testimony that FCCS‘s employees were aware of mother‘s intellectual functioning, and they took it into account in attempting to help mother. Brumfield acknowledged that mother was diagnosed with borderline intellectual functioning. She said she explained concepts very clearly and simplified concepts down to
{¶ 25} Although mother does not raise any error with respect to the remaining best interest factors, we have reviewed the trial court‘s analysis and the record before us and agree with the trial court‘s analysis. There was clear and convincing evidence to support the court‘s findings regarding these factors. For all the above reasons, mother‘s first assignment of error is overruled.
{¶ 26} Mother argues in her second assignment of error that S.S. was denied effective assistance of counsel because her appointed counsel failed to advocate for her wishes. FCCS initially contests whether mother has standing to raise this argument. Parents have standing to appeal an error committed against their children only if the error is prejudicial to the parents’ rights. In re B.L., 10th Dist. No. 04AP-1108, 2005-Ohio-1151, ¶ 44, citing In re Smith, 77 Ohio App.3d 1, 13 (6th Dist.1991). Thus, when parents and their child all have the same interest – reunification of the family – the parents have standing to assert on appeal that their child‘s attorney provided ineffective assistance of counsel when the attorney did not adequately represent that interest for the child. Id., citing Smith and In re Moody, 4th Dist. No. 00CA5 (June 28, 2001).
{¶ 28} Accordingly, mother‘s first and second assignments of error are overruled, and the judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, are affirmed.
Judgments affirmed.
SADLER and CONNOR, JJ., concur.