In re T.S.
HALL, P.J.
{¶ 1} T.S. (“Mother“)
{¶ 2} In his sole assignment of error in this expedited appeal, Father contends the trial court‘s decision is not supported by clear and convincing evidence. For her part, Mother advances five assignments of error. First, she asserts that the trial court‘s decision is against the weight of the evidence. Second, she claims the trial court erred in failing to address whether GCCS made reasonable efforts to reunify the family. Third, she argues that the trial court erred in finding an award of permanent custody to GCCS to be in the child‘s best interest. Fourth, she maintains that the trial court erred in “not discounting” a guardian ad litem‘s recommendation and in not appointing separate counsel for T.S. Fifth, she contends the trial court erred in not adequately considering T.S.‘s wishes and in not appointing separate counsel to help the child adjudicate those wishes.
{¶ 3} The record reflects that T.S. resided with Mother in September 2013 when the child initially was adjudicated neglected and dependent. T.S. was four years old at that time. The adjudication followed a domestic-violence incident in which Father, who lived separately, assaulted Mother in front of the child. As a result of that incident, an investigation ensued, resulting in concerns about Mother‘s stability and ability to care for the child. Following the neglect and dependency adjudication, GCCS was granted protective supervision. (Doc. #28).
{¶ 4} In January 2014, a second neglect and dependency complaint was filed. This complaint resulted in a second dependency adjudication based on stipulated facts and
{¶ 5} In July 2015, GCCS filed a third dependency complaint. (Doc. #129). The complaint raised newfound concerns about Mother‘s stability and ability to meet T.S.‘s basic needs. It also stated that GCCS had assumed “temporary custody through a voluntary custody agreement approved by [Mother].” (Id. at 3). The complaint requested an award of permanent custody to the agency. (Id. at 6).On August 14, 2015, the trial court granted interim custody to GCCS. (Doc. #140). Its ruling included a finding that the agency had made “reasonable efforts” to prevent T.S.‘s removal and continued removal from Mother‘s home and to return her home. The ruling explained what those efforts included and why they had failed. (Id. at 4). GCCS‘s permanent-custody complaint proceeded to a three-day hearing before the trial court in January and February 2016. Following the hearing, the trial court filed a June 30, 2016 judgment entry in which it awarded GCCS permanent custody of T.S. and terminated Mother‘s and Father‘s parental rights. (Doc. #189). This appeal followed.
{¶ 6} A trial court‘s decision to grant permanent custody to the State and to
{¶ 7} Having identified our standard of review, we turn now to the issues before us. We note that “[t]here are two avenues by which an agency can obtain permanent custody of a child: (1) by requesting it in the abuse, neglect or dependency complaint under
{¶ 8} Here GCCS previously had obtained temporary custody of T.S. But the child had been returned to Mother before the agency became involved again. GCCS‘s most recent activity involved filing a third dependency complaint and requesting permanent custody therein, without again formally obtaining temporary custody. (Doc. #129). Therefore, the procedure set forth in
(4) Commit the child to the permanent custody of a public children services agency or private child placing agency, if the court determines in accordance with division (E) of section 2151.414 of the Revised Code that the child cannot be placed with one of the child‘s parents within a reasonable time or should not be placed with either parent and determines in accordance with division (D)(1) of section 2151.414 of the Revised Code that the permanent commitment is in the best interest of the child. If the court grants permanent custody under this division, the court, upon the request of any party, shall file a written opinion setting forth its findings of fact and conclusions of law in relation to the proceeding.
{¶ 9} As an initial matter, we note that neither party requested findings of fact or conclusions of law as authorized by the foregoing provision. In any event, the trial court filed a judgment consisting of four single-spaced pages containing sufficient findings to enable appellate review. (Doc. #189). With regard to the finding required by
{¶ 10} The real disputed issue (at least with regard to Father‘s lone assignment of error and Mother‘s first and third assignments of error) is the trial court‘s best-interest finding. In his assignment of error, Father cites the statutory best-interest factors and appears to challenge the trial court‘s analysis of them. (Father‘s appellate brief at 4-7). For her part, Mother argues in her first assignment of error that the trial court‘s disposition is against the manifest weight of the evidence because she effectively had satisfied her most recent case-plan objectives. (Mother‘s brief at 5-7). In her third assignment of error, Mother directly challenges the trial court‘s statutory best-interest findings. (Id. at 8-11).
{¶ 11} We turn initially to Mother‘s first assignment of error. Her argument is that
{¶ 12} Upon review, we find Mother‘s first assignment of error to be unpersuasive. We do not dispute that, by the time of the final hearing on T.S.‘s third and most recent dependency complaint, Mother at least arguably had satisfied her case plan objectives, a fact recognized by the guardian ad litem. (Tr. Vol. III at 714-715). That fact, however, is not dispositive at the best-interest stage. In re T.D., 2d Dist. Montgomery No. 27136, 2016-Ohio-7245, ¶ 12. ” ‘[A] parent‘s case plan compliance, while it may be relevant to a best interest analysis, does not automatically override a trial court‘s decision regarding what is in a child‘s best interests.’ ” Id., quoting In re M .B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 59, citing In re N.L., 9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶ 35. This court has recognized that “[w]hen the focus is on the child‘s best interest, a trial court conceivably could terminate parental rights even if a parent completed all of her case-plan objectives.” In re T.D. at ¶ 12, citing In re M.B. This court also has observed that “[t]he case plan is simply ‘a means to a goal, but not the goal itself,’ and other considerations still may justify an award of permanent custody to a children-services agency.” Id., quoting In re J.H., 12th Dist. Clinton Nos. CA2015-07-014, CA2015-07-015, 2016-Ohio-640, ¶ 47 (citations omitted); see also In re R.P., 2d Dist. Montgomery Nos. 26744, 26754, 2015-Ohio-4295, ¶ 17 (“While Father and Mother admittedly made progress on their case plans, that fact is not dispositive of their child‘s best interest. The trial court is best positioned to weigh the various best-interest factors, and an award of permanent custody to the State can be appropriate even when just one of those factors supports such a disposition.“).
{¶ 13} Because Mother‘s compliance with her most recent case-plan objectives is relevant to, but not dispositive of, the trial court‘s best-interest determination, we will proceed to Father‘s sole assignment of error and Mother‘s third assignment of error, which address the best-interest issue directly.
{¶ 14} The statutory best-interest factors include 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} In its ruling, the trial court addressed the best-interest factors as follows:
The Court has [reviewed] the relevant factors herein, including those as set forth in ORC 2151.414(D)(1)(a)-(e) and the Court finds the interrelationship of T.S. and her foster family in making its decision. T.S. and her foster family have developed a bond. T.S. and her foster family began living together in 2013 and continually since 2014. T.S. needs in her life legally secure permanent placement and that type of placement cannot be achieved without a grant of permanent custody. As such, GCCS has met the burden of its motion to terminate [Mother‘s] and [Father‘s] parental rights.
(Doc. #189 at 3).
{¶ 16} Although the trial court made few factual findings to support its conclusions, Mother and Father did not request findings of fact as they could have done pursuant to
{¶ 17} In arguing to the contrary, Mother asserts that she now has stable housing, income, and a support system. She also points out that she took parenting classes and a domestic-violence class. She also has visited T.S. regularly. Mother further asserts that the trial court could have awarded GCCS temporary custody or could have placed the
{¶ 18} We find the foregoing arguments to be unpersuasive. As a preliminary matter, the trial court had no obligation to consider placing T.S. with a relative or family friend. In re E.S., 2d Dist. Clark No. 2016-CA-36, 2017-Ohio-219, ¶ 59. Unlike biological parents, other relatives or friends seeking placement are not afforded special status or presumptive rights. Id. A trial court need not find a child‘s relative or family friend unsuitable before granting an agency permanent custody, and a court is not required to favor a relative or friend where an award of permanent custody serves the child‘s best interest. Id., quoting In re A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-5595, ¶ 44.
{¶ 19} In any event, the trial court heard evidence about possibly placing T.S. with C.L., who has been Father‘s girlfriend since 2014. The record contains evidence that Father struck C.L. in the face outside a nightclub in July 2015 after she caught him with
{¶ 20} With regard to Father, the record supports a conclusion that he lacks stability and other characteristics needed to provide T.S. with a legally-secure permanent placement. Father has four children in all, does not have custody of any of them, and has not paid his required child support. (Id. at 198; Tr. Vol. III at 527). The record contains evidence that he “hasn‘t been a stable figure in [T.S.‘s life] and has only seen her sporadically since the case opened.” (Tr. Vol. I at 267). On December 23, 2015, Father appeared for a supervised visit and tested positive for using illegal drugs. (Tr. Vol. I at 170-171). He subsequently never appeared for another visit. (Id.). Father also has an extensive criminal history that includes convictions for aggravated burglary, aggravated robbery, possession of cocaine and crack cocaine, and felony theft. (Tr. Vol. II at 193-196). In addition, he has convictions for resisting arrest and public intoxication as well as numerous convictions for driving under suspension. (Tr. Vol. III at 528, 532-533). His most
{¶ 21} As for Mother, she gave birth to five children prior to T.S. and voluntarily relinquished or involuntarily lost custody of all of them. (Id. at 200; Tr. Vol. III at 684-688). Although she lacks Father‘s extensive criminal record, she was convicted of felonious assault in 2003. (Id. at 199). Caseworker Masters testified that Mother lacks the ability to manage her bills and personal affairs without assistance. (Id. at 208). According to Masters, Mother has a learning disability and becomes “anxious” and “overwhelmed” very easily. (Id. at 230). In general, Mother has a hard time recognizing T.S.‘s needs because she is “busy focusing on daily tasks.” (Id. at 231).
{¶ 22} The record reflects that GCCS initially became involved with Mother and T.S. in May 2013 after Father punched her in the face and choked her while exchanging the child. (Tr. Vol. III at 605-606; Tr. Vol. I at 143; Doc. #69 at Stipulated Facts). Following that incident, Mother moved into a domestic-violence shelter with T.S. (Tr. Vol. III at 605). While there, Mother exhibited “a pattern of aggressive behavior toward her daughter.” (Tr. Vol. I at 134). Caseworker Masters testified: “[M]other was having a difficult time caring for [T.S.] on a daily basis. The police had been called to the Domestic Violence Prevention Center twice in regards to [Mother‘s] aggression towards [T.S.], and we were concerned
{¶ 23} Shortly after reuniting with T.S., however, Mother started becoming “overwhelmed” and sought respite care from the child‘s former foster parents to give herself a break from parenting. (Id. at 139-140). Within weeks, another dependency complaint was filed and GCCS obtained temporary custody of T.S., who returned to the same foster care. The agency became involved this time after a neighbor called the police and reported hearing “slapping sounds and screaming and crying from [T.S.] inside Mother‘s apartment.” (Id. at 140). The resulting dependency adjudication was based on stipulated facts that included, among other things, the following:
In foster care TS was observed yelling and slapping dolls in the face if they “didn‘t behave.” It was reported the child had been having nightmares about Texas Chainsaws and Freddy and Jason. TS acted out cutting off limbs from the doll and told the foster parent she watched movies with her mom. It was also reported and witnessed by the caseworker that TS becomes visibly upset when she was preparing to visit her mother like shaking and crying. TS has told this CW several times “I‘m scared” and “I‘m scared to go” (to her mother‘s) on multiple occasions.
Recently, the police were called to [Mother‘s] residence by someone who reported hearing TS being repeatedly slapped and yelled at, stating
that “I‘m your mother” and “You will call me mommy.” The report claims that a similar incident had been heard in the recent past, but was not reported. Later that same day, [Mother] was observed pulling and yanking on TS‘s hair (while braiding it) so hard that the child was crying in pain. When instructed to stop [Mother] refused and continued doing what she was doing. * * * The reporter also indicated that TS was observed sitting in an overly sexual manner and using words like “sexy” to describe herself. [Mother] did not find this concerning. This concern has been previously discussed with [Mother] by the agency after it was reported that TS had referred to herself as sexy and stated she watched mommy and her “boyfriend” kissing on the bed.
(Doc. #69 at 2).
{¶ 24} Mother proceeded to work on a new case plan to address GCCS‘s multiple concerns. By March 2015, she had made sufficient progress and had “stabilized” to the point that GCCS agreed to return custody to her with protective supervision. (Tr. Vol. I at 154, 157-158). Mother was reunited with T.S. in April 2015. (Id. at 158). Although things initially went well, by July 2015 Mother had accrued a delinquent electric bill in excess of $1,100. (Tr. Vol. III at 619). Caseworker Masters testified that Mother‘s inability to pay her utility bill was a recurring problem throughout the agency‘s involvement in the case. (Tr. Vol. II at 209-211). On the occasion in July 2015, Mother wrote a bad check to pay the bill, and her utilities were disconnected when it bounced. (Tr. Vol. II at 211; 326; Tr. Vol. III at 618-620). As a result, she was evicted from her apartment. (Id.). Around that time,
{¶ 25} In July 2015, GCCS filed a third dependency complaint. (Doc. #129). Mother again began working on case-plan objectives. At some point, she moved in with her mother in law before obtaining the apartment where she resided at the time of the final hearing in January and February 2016. When the hearing commenced, Mother had been living in her most recent apartment for about four months. (Tr. Vol. III at 604-605). When caseworker Ann Masters visited the apartment, it “didn‘t have any furniture.” (Id. at 676). At that time, T.S. already had been returned to her previous foster home because Mother had “agreed that she was struggling and that it was in [T.S.‘s] best interest to come back into agency custody.” (Tr. Vol. I at 162).
{¶ 26} Although the guardian ad litem opined at the final hearing that Mother essentially had completed her most recent case plan objectives, she added: “Well, working a case plan when you are accountable is one thing. But once you‘re turned loose, what‘s going to happen? * * * [W]hat happens when nobody‘s looking anymore?” (Tr. Vol. III at 711). Caseworker Masters expressed more specific concerns. She opined:
[Mother] has been unable to stabilize her own personal life long
enough for her to care for a child. [Mother] has a pattern of behavior, and the way it works with [Mother] is she‘ll get stable and she‘s stable for a minute, and then something happens, her disability gets in the way and it‘s very hard for her to function and things start falling apart. * * *
I‘m taking—we are asking for permanent custody because [Mother] doesn‘t have the ability to remain stable long enough to raise a child successfully.
(Tr. Vol. II at 322).
{¶ 27} By January and February 2016, when the final hearing took place, T.S. had been in foster care with the same family almost continuously since November 2013 (except for brief periods of time when the child had been returned to Mother). (Tr. Vol. I at 10). T.S.‘s undesirable behaviors had decreased, and she enjoyed being around the foster parents’ other children. (Id. at 10-11). She referred to them as her brothers and sisters and had a sibling-like relationship with them. (Id. at 12). T.S.‘s foster mother expressed a desire for her family to adopt the child. (Id. at 24-27).
{¶ 28} Having reviewed the record, we see clear and convincing evidence to support the trial court‘s finding that awarding GCCS permanent custody of T.S. is in the child‘s best interest. Although both parents at times have made substantial progress on their case plans, T.S.‘s interaction with relevant parties, including Mother, Father, and the foster parents, militates in favor of the trial court‘s decision. Although T.S. is of tender years and has expressed varying wishes, the record reveals that, if anything, she most often has expressed a desire to reside with her foster parents. T.S.‘s custodial history
{¶ 29} In her second assignment of error, Mother contends the trial court erred in not addressing whether GCCS had made reasonable efforts to “reunify the family.” More specifically, Mother argues that the trial court failed to consider whether the agency made reasonable efforts to reunify her with T.S. Absent a reasonable-efforts finding, Mother argues that the trial court was not authorized to grant permanent custody to GCCS. In connection with her argument, Mother also asserts that GCCS could have placed T.S. with a suitable relative rather than seeking permanent custody.1 (Mother‘s appellate brief at 7-8).
{¶ 30} Upon review, we find Mother‘s second assignment of error to be unpersuasive. In support of her reasonable-efforts argument, Mother relies on
(A)(1) Except as provided in division (A)(2) of this section, at any
hearing held pursuant to section 2151.28, division (E) of section 2151.31, or section 2151.314, 2151.33, or 2151.353 of the Revised Code at which the court removes a child from the child‘s home or continues the removal of a child from the child‘s home, the court shall determine whether the public children services agency or private child placing agency that filed the complaint in the case, removed the child from home, has custody of the child, or will be given custody of the child has made reasonable efforts to prevent the removal of the child from the child‘s home, to eliminate the continued removal of the child from the child‘s home, or to make it possible for the child to return safely home. * * *
(Emphasis added).
{¶ 31} As explained above, “[t]here are two avenues by which an agency can obtain permanent custody of a child: (1) by requesting it in the abuse, neglect or dependency complaint under
{¶ 32} Here GCCS previously had obtained temporary custody of T.S. But the child had been returned to Mother before the agency became involved again. GCCS‘s most
(2) If any of the following apply, the court shall make a determination that the agency is not required to make reasonable efforts to prevent the removal of the child from the child‘s home, eliminate the continued removal of the child from the child‘s home, and return the child to the child‘s home:
* * *
(e) The parent from whom the child was removed has had parental rights involuntarily terminated with respect to a sibling of the child pursuant to section 2151.353, 2151.414, or 2151.415 of the Revised Code or under an existing or former law of this state, any other state, or the United States that is substantially equivalent to those sections.
{¶ 33} In the present case, the trial court recognized the existence of the reasonable-efforts issue. It determined, however, that GCCS was not required to make the reasonable efforts discussed above because the facts fit within one of the exceptions in
{¶ 34} In her fourth assignment of error, Mother contends the trial court erred in “not discounting” the guardian ad litem‘s recommendation and in not appointing separate counsel for T.S.
{¶ 35} With regard to the first issue, Mother argues that the guardian ad litem, who recommended permanent custody to GCCS, contravened
{¶ 36} We find neither of Mother‘s arguments to be persuasive. This court previously addressed
{¶ 37} Here we find no abuse of discretion in the trial court‘s consideration of the guardian‘s recommendation. In her appellate brief, Mother identifies a litany of things that she believes the guardian either failed to do or failed to do sufficiently. (Mother‘s appellate brief at 13). We note, however, that the guardian was examined at length regarding those perceived deficiencies and what she did, or did not do, in this case. (Tr. Vol. III at 701-746). We note too that much of the guardian‘s hearing testimony was favorable to Mother. Among other things, the guardian acknowledged that Mother effectively had completed her most recent case-plan objectives and had done everything GCCS had asked her to do. The guardian also acknowledged that some of GCCS‘s information about the case appeared to be inaccurate or incomplete. (Tr. Vol. III at 701-718). On the record before us, we are unconvinced that the trial court abused its discretion in considering the guardian‘s hearing testimony and written report notwithstanding the perceived
{¶ 38} We are equally unpersuaded by Mother‘s argument about the appointment of separate counsel for T.S. The basis for Mother‘s argument is that the child‘s wishes regarding permanent custody differed from the guardian‘s. Under such circumstances, Mother contends the appointment of separate counsel to assist T.S. was required. We disagree that separate counsel was required here.
{¶ 39} Separate counsel must be appointed to represent a child in permanent-custody cases only when the child consistently has expressed a desire that is inconsistent with the guardian‘s recommendation and when the child is mature enough to understand the situation. See, e.g., In re J.W., 2d Dist. Clark Nos. 2013-CA-113, 2013-CA-114, 2014-Ohio-2814, ¶ 38-48. In the present case, T.S. was four years old when GCCS initially became involved with her. She turned six years old during the pendency of the proceedings. At different times, T.S. expressed a desire to live with her foster parents. The child also once expressed a desire to live with Mother, but without the “scary boyfriends.” Under these circumstances, the trial court did not err in failing to appoint separate counsel for T.S. Mother‘s fourth assignment of error is overruled.
{¶ 40} In her fifth assignment of error, Mother asserts that the trial court erred in not adequately considering T.S.‘s wishes and in not appointing separate counsel to help the child adjudicate those wishes.
{¶ 41} Insofar as this assignment of error references the non-appointment of separate counsel, we resolved that issue above. With regard to the trial court‘s consideration of T.S.‘s wishes, we see no error. Mother‘s entire substantive argument is as follows:
In the instant matter, the trial court failed to consider the wishes of the child. The CASA/guardian ad litem did not list the wishes of the child in her report. The child was never interviewed by the court, nor did the child have counsel who could advocate the child‘s position. Therefore, the trial court committed reversible error. Mother respectfully requests that this Court find the same.
(Mother‘s appellate brief at 14).
{¶ 42} Contrary to Mother‘s argument, the guardian ad litem filed multiple reports addressing T.S.‘s wishes. The guardian ad litem also testified about the child‘s wishes at the permanent-custody hearing. In its ruling, the trial court stated that it had considered the factors set forth in
{¶ 43} Having overruled all assignments of error raised by Mother and Father, we affirm the judgment of the Greene County Common Pleas Court, Juvenile Division.
Copies mailed to:
Stephen K. Haller
Nathaniel R. Luken
Hilary Lerman
Marcy A. Vonderwell
Hon. Adolfo A. Tornichio