in re K.A. , 2021 Ohio 1773 ( 2021 )

[Cite as in re K.A., 2021-Ohio-1773.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: K.A. : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
:
:
: Case No. 2021 CA 00004
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Juvenile Division, Case
No. 2019 AB 0059
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 24, 2021
APPEARANCES:
For: Appellee For: Mother
R. KYLE WITT WILLIAM J. HOLT
Prosecuting Attorney 2140 Lancaster-Newark Rd N.E.
By: GENYLYNN COSGROVE Lancaster, OH 43130
Assistant Prosecuting Attorney
239 West Main Street, Ste 101
Lancaster, OH 43130
[Cite as in re K.A., 2021-Ohio-1773.]
Gwin, J.
{¶1} Appellant A.C. appeals the December 17, 2020 judgment entry of the
Fairfield County Court of Common Pleas, Juvenile Division, terminating her parental
rights and granting permanent custody of K.A. to Fairfield County Child Protective
Services (“FCCPS”).
Facts & Procedural History
{¶2} A.C. is the mother (“Mother”) of K.A., born on May 9, 2019. J.A. is the father
(“Father”) of the child.
{¶3} On May 16, 2019, FCCPS filed a complaint for abuse and/or dependency
with regards to K.A. The complaint alleged, in part: Mother and K.A. tested positive for
heroin at the time of K.A.’s birth; Mother has a significant history of using both
methamphetamines and opiates; Father has a significant history of substance abuse of
both heroin and methamphetamines; Father refused to submit to a random drug screen
on May 14, 2019; and Father admitted to using methamphetamine and heroin “a couple
days ago.” K.A. was placed in the temporary custody of FCCPS on May 16, 2019.
{¶4} The trial court found K.A. dependent on August 7, 2019. Neither parent
contested the finding of dependency. The trial court granted the agency’s motion to
extend temporary custody in May of 2020.
{¶5} The trial court originally appointed Natalie Noyes as guardian ad litem in the
case in May of 2019. On June 4, 2020, Noyes filed a motion to withdraw as GAL. The
trial court granted the motion, and appointed Amanda Morris as the guardian ad litem on
June 9, 2020. Noyes filed a report in July of 2019, stating that she attempted to contact
both Mother and Father via phone calls and letters, but the phone numbers of both
Fairfield County, Case No. 2021 CA 00004 3
parents were disconnected and, despite the letters not being returned, neither Mother or
Father contacted her.
{¶6} FCCPS filed a motion for permanent custody on August 11, 2020. Paternal
grandparents filed a motion for legal custody on August 17, 2020. The trial court set a
hearing for December 9, 2020. The GAL filed a report on December 2, 2020, opining that
it is in the best interest of K.A. for permanent custody to be granted to FCCPS. The GAL
stated she spoke with the foster parents, the paternal grandparents, and caseworkers,
but “did not make contact with Father or Mother due to their continued incarceration during
my involvement in this matter. However, I have had contact with Mother through my
involvement with an older sibling.”
{¶7} Father filed a motion to continue the hearing on December 7, 2020 because
the GAL did not meet with Father as required by Rule of Superintendence 48. The trial
court denied the motion on December 7, 2020, stating “whether or not the Guardian ad
Litem fulfilled her duties under Superintendence Rule 48 is not a proper basis for a
continuance of a permanent custody hearing. Counsel for Father may cross-examine the
Guardian ad Litem as to her investigation into this matter at the hearing. The Court will
then give the report the weight it deserves in making the determination as to what is in
the best interest of the child.”
{¶8} The parties submitted written stipulations prior to the hearing. Both Mother
and Father stipulated that K.A. has been in the temporary custody of FCCPS for twelve
or more months of a consecutive twenty-two-month period.
{¶9} At the hearing, counsel for Mother indicated he would be taking no position
on the motion for permanent custody, as he had not had contact with Mother for an
Fairfield County, Case No. 2021 CA 00004 4
extended period of time. During the virtual hearing, Mother called in. She was permitted
to speak with her attorney. Mother directed her attorney to tell the trial court that she was
aware of the hearing and that she did not want to participate in the hearing.
{¶10} Bailey Cunningham (“Cunningham”) was the ongoing caseworker for
Mother’s first child. Mother never made significant progress with her case plan, so
FCCPS was granted permanent custody of the child in 2019.
{¶11} Caitlin Huffstutler (“Huffstutler”) was the intake worker for K.A. FCCPS
initially became involved with the family because Mother tested positive for heroin and
opiates upon her admission to the hospital, and K.A. tested positive for opiates when he
was born. Mother initially gave Father’s name as a placement for K.A., but Father refused
to drug test when he met with Huffstutler and admitted he used heroin and meth several
days prior. When Huffstutler picked up K.A. from the hospital, there was a security
concern that paternal grandmother may try to come to the hospital to pick up the child
herself. After K.A. was released from the hospital, Huffstutler attempted to contact Father,
but could not get in touch with him. The case was then transferred to the ongoing case
unit.
{¶12} Jessica Caldwell (“Caldwell”) is the parenting time monitor in this case. K.A.
went on visit status with Mother on March 21, 2020. However, this was revoked in April
of 2020 when Mother was arrested on a probation violation. Mother went back to
supervised visits with K.A. until July 22, 2020 when she went back to jail. FCCPS
generally does not do visits with parents when they are incarcerated when the children
are as young as K.A. is. Mother is now living with her boyfriend, who was recently indicted
on a felony drug trafficking charge.
Fairfield County, Case No. 2021 CA 00004 5
{¶13} Rachel Weygandt (“Weygandt”) has been the ongoing caseworker for K.A.
since June of 2019.
{¶14} Mother’s case plan required her to: meet with the caseworker monthly,
maintain housing, maintain employment, participate in the call-in drug screening program
with American Court Services, complete a mental health and substance use disorder
assessment and follow all recommendations, and participate in consistent parenting time
with K.A.
{¶15} From June until September of 2019, Mother lived in a women’s shelter. She
then obtained housing at The Pearl House. Mother will be evicted from The Pearl House
at the end of the month, so is staying with her boyfriend, who has felony drug trafficking
charges pending. Weygandt agreed to schedule a walk-through of Mother’s boyfriend’s
home; however, Mother never returned her call. Mother works at IHOP, with inconsistent
income. Mother reported to Weygandt it is difficult for her to maintain and provide for her
basic needs because Mother does not have a driver’s license. Weygandt attempted to
help Mother get employment closer to home, but it did not work out.
{¶16} On March 20, 2020, because of COVID visitation restrictions, FCCPS
decided to put K.A. on visit status with Mother and monitor them closely. On April 15,
2020, Weygandt was contacted by Mother’s probation officer and informed Mother tested
positive for meth and heroin, so visitation was revoked. After Mother was released from
jail for the second time in October or November of 2020, she has not been compliant with
her case plan.
{¶17} Weygandt detailed the reasonable efforts FCCPS has made since 2019 in
attempts to help Mother. Due to her continued substance abuse issues and lack of
Fairfield County, Case No. 2021 CA 00004 6
compliance with the case plan, Weygandt does not believe Mother is able to care for K.A.
at this point in time.
{¶18} FCCPS completed two kinship assessments on Mother’s family, one for her
sister and one for her brother. The brother’s assessment was approved, but the sister’s
assessment was denied due to criminal history. After five visits with Mother’s brother, he
determined he could not care for K.A. and withdrew his kinship application.
{¶19} During one unannounced visit when Mother had unsupervised visitation in
October of 2019, Weygandt found Father hiding in K.A.’s closet under some clothes,
despite the fact that Mother was not supposed to have any contact with him. In January
of 2020, Weygandt had concerns about the parents’ honesty because she saw Father
and Mother in a car together, but they denied they were together.
{¶20} K.A. has been placed in the same foster home since several days after his
birth. The foster family adopted Mother’s first child. Weygandt has observed K.A. in the
foster home on a monthly basis. K.A. is very bonded with both foster parents and his
sibling. K.A. is thriving in the foster home. K.A. has been in the temporary custody of the
agency since May of 2019.
{¶21} While FCCPS has tried to work to reunify K.A. with Mother, that has not
come to fruition. Weygandt testified that K.A. deserves to have a home where he can
feel safe and allow him to thrive. Neither Mother nor Father can currently provide K.A.
with a legally secure permanent placement. Thus, Weygandt believes is in the best
interest of K.A. to grant permanent custody to FCCPS.
{¶22} Counsel for Father and counsel for Mother each cross-examined the GAL
about her report.
Fairfield County, Case No. 2021 CA 00004 7
{¶23} Based on everything she heard at the hearing, the GAL’s opinion has not
changed from her report recommending that granting permanent custody to FCCPS is in
the best interest of K.A.
{¶24} The trial court issued a judgment entry on December 17, 2020 granting
FCCPS’s motion for permanent custody, terminating the parental rights of Mother,
terminating the parental rights of Father, and placing K.A. in the permanent custody of
FCCPS.
{¶25} As to Mother’s case plan, the trial court found she has not had consistent
contact with FCCPS; has not successfully completed the objective of maintaining stable
housing; did not successfully complete the call and screen portion of her case plan, as
she was jailed multiple times for using heroin and meth, missed 113 tests, and of the 9
tests she completed, was positive on 8; did not successfully complete the treatment
portion of her case plan, as she has not participated in continuous recovery services; has
not successfully completed the parenting time objective, as she was arrested for a
positive drug screen when K.A. was on overnight visits status and her choices (such as
living with her boyfriend who has pending felony charges) have not allowed for expansion
of visitation due to safety concerns.
{¶26} While Mother has maintained stable employment at IHOP and substantially
complied with that objective, this compliance is fragile due to her lack of driver’s license
and felony convictions.
{¶27} The trial court found FCCPS exerted diligent and reasonable efforts to
assist Mother in remedying the problems that caused K.A. to be removed from the home,
but these services have not prevented the need for removal of the child or enabled the
Fairfield County, Case No. 2021 CA 00004 8
child to return safely home. Further, that Mother has failed continuously and repeatedly
to substantially remedy the conditions causing the child to be placed outside the home.
{¶28} The trial court determined K.A. is bonded with his foster family and his
needs are being met in their home. The child has lived with the foster family since he
was seven days old, and has continuously resided with them, except for March 20, 2020
through April 15, 2020, when the child was on visit status with Mother.
{¶29} When discussing the GAL’s report, the trial court specifically stated in its
opinion, “the Court has taken into consideration the concerns of parties as to the
investigation of the GAL and gives the GAL report the weight it deserves.”
{¶30} As to the first prong of permanent custody, the trial court found the parties
stipulated K.A. was in the temporary custody of FCCPS for twelve or more months of a
consecutive twenty-two-month period, beginning on May 16, 2019 through the filing of the
motion for permanent custody on August 11, 2020. Further, that Mother abandoned the
child by failing to have contact from July 22, 2020 through October 29, 2020 while she
was incarcerated and Father abandoned the child by failing to have contact from June
30, 2020, through October 13, 2020 because he was incarcerated. The court found, by
clear and convincing evidence, R.C. 2151.414(B)(1)(b) and (d) applies to both Mother
and Father.
{¶31} The trial court then went through each of the applicable best interest factors
detailed in R.C. 2151.414(D)(1) and found as follows: (a) Mother’s addiction and poor
choices have prevented her from bonding with K.A.; Mother has not visited consistently
since her incarceration; Mother chose not to contest the permanent custody; the child is
bonded with his foster parents; K.A. resides with his half-sibling; (b) the child is too young
Fairfield County, Case No. 2021 CA 00004 9
to express his wishes; (c) the child has been with the foster parents since May 16, 2019,
and was only at Mother’s for 25 days during that period; (d) K.A. needs a safe and stable
environment where K.A.’s needs are met on a consistent basis; K.A. cannot find legally
secure placement with Mother because she has failed to follow through with treatment
recommendations, has been repeatedly incarcerated, and failed to secure stable housing;
no kinship placements were approved, despite being explored by FCCPS; (e) Mother
abandoned the child due to her incarceration; Mother had her parental rights involuntarily
terminated with respect to K.A.’s sibling; and (f) Mother did not contest the permanent
custody motion.
{¶32} Utilizing these factors, the trial court found, by clear and convincing
evidence, it is in the best interest of K.A. to be committed to the permanent custody of
FCCPS. The trial court granted the motion of FCCPS for permanent custody and
terminated the parental rights of Mother.
{¶33} Mother appeals the December 17, 2020 judgment entry of the Fairfield
County Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶34} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT
REQUIRING THE GUARDIAN AD LITEM TO SUBSTANTIALLY COMPLY WITH HER
DUTIES UNDER OHIO REVISED CODE 2151.281 AND RULE 48.03 OF THE OHIO
RULES OF SUPERINTENDENCE.”
Permanent Custody
{¶35} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
Fairfield County, Case No. 2021 CA 00004 10
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1).
{¶36} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). “Where the degree of proof
required to sustain an issue must be clear and convincing, a reviewing court will examine
the record to determine whether the trier of facts had sufficient evidence before it to satisfy
the requisite degree of proof.” Id. at 477. If some competent, credible evidence going to
all the essential elements of the case supports the trial court’s judgment, an appellate
court must affirm the judgment and not substitute its judgment for that of the trial court.
C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶37} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties’
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶38} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶39} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
Fairfield County, Case No. 2021 CA 00004 11
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, 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 no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period ending on or after March 18,
1999.
{¶40} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial court
will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child. In this case, the parties stipulated that K.A. has been in the
temporary custody of FCCPS for twelve or more months of a consecutive twenty-two-
month period. Additionally, the trial court found Mother abandoned K.A. by failing to have
contact from July 22, 2020 through October 29, 2020 while she was incarcerated
I.
{¶41} Mother contends the trial court committed error by admitting the GAL’s
report and testimony into evidence because the GAL did not substantially comply with her
duties. Specifically, Mother argues the GAL was required to interview Mother and
observe her with K.A., and the GAL’s failure to do to so deprived Mother of her due
process rights.
Fairfield County, Case No. 2021 CA 00004 12
{¶42} We first note that Mother did not appear for the permanent custody hearing.
Additionally, Mother did not object to the GAL’s testimony, or to the admission of her
report. The only objection counsel for Mother made regarding the GAL’s testimony and
report came in closing arguments, when he argued the GAL did not substantially comply
with her duties.
{¶43} R.C. 2151.281 governs a GAL’s duties and provides the GAL “shall perform
whatever functions are necessary to protect the best interest of the child, including, but
not limited to, investigation, mediation, monitoring court proceedings, and monitoring the
services provided the child by the public children services agency * * *.” There is no
specific requirement contained in R.C. 2151.281 that a GAL must interview the parents
or observe them with the child. R.C. 2151.281 instructs the Ohio Supreme Court to adopt
rules regarding the duties a GAL should perform when protecting the interest of a child.
The Ohio Supreme Court has done so in Superintendence Rule 48.
{¶44} Rule 48(D) of the Ohio Rules of Superintendence is a lengthy statement of
the basic responsibilities of a GAL serving in an Ohio court, which are to be performed
“unless impracticable or inadvisable to do so.” These responsibilities include representing
the best interest of the child for whom the GAL is appointed, maintaining independence,
objectivity, and fairness, acting as an officer of the court, participating in pertinent
hearings, resolving any conflicts of interest that may arise, meeting qualifications and
training requirements, making reasonable efforts to become informed about the case,
contacting the parties, maintaining confidentiality, and numerous other considerations.
{¶45} We have recognized that Superintendence Rule 48 is a general guideline
that does not have the force of statutory law, and therefore an appellant does not have
Fairfield County, Case No. 2021 CA 00004 13
any substantive right to enforce it. In the Matter of D.S., 5th Dist. Fairfield No. 15 CA 30,
2016-Ohio-79, Rice v. Rice, 5th Dist. Delaware No. 10 CAF 11 0091, 2011-Ohio-3099.
In general, the Ohio Rules of Superintendence are “purely internal housekeeping rules
which do not create substantive rights in individuals or procedural law.” Elson v.
Plokhooy, 3rd Dist. Shelby No. 17-10-24, 2011-Ohio-3009.
{¶46} Further, most importantly for purposes of due process, the GAL was present
at the evidentiary hearing and testified. K.A. was represented by counsel separate from
the GAL. Counsel for Mother, counsel for Father, and counsel for K.A. all had the
opportunity to cross-examine the GAL. Due process requires notice and the opportunity
to be heard. State v. Hayden, 96 Ohio St.3d 211, 773 N.E.2d 502 (2002). Here, Mother
had notice of the GAL’s report and was given the opportunity to be heard on the contents
of the report. Mother chose not to appear for the hearing. Her counsel was given the
opportunity to cross-examine the GAL about her report, and did so at the hearing.
{¶47} Additionally, the trial court, as the trier of fact, is permitted to assign weight
to the GAL’s testimony and recommendation and to consider it in the context of all the
evidence before the court. In the Matter of D.S., 5th Dist. Fairfield No. 15 CA 30, 2016-
Ohio-79, In re T.C., 6th Dist. Lucas No. L-15-1106, 2015-Ohio-3665, In re M.Z., 9th Dist.
Lorain No. 11CA010104, 2012-Ohio-3194. The decision of whether to consider a GAL
report, even when the guardian did not fully comply with Superintendence Rule 48, is
within a trial court’s discretion. See Corey v. Corey, 2nd Dist. Greene No. 2013-CA-73,
2014-Ohio-3258.
{¶48} In this case, the trial court specifically addressed the objections made to the
GAL report by the parties and stated it “has taken into consideration the concerns of the
Fairfield County, Case No. 2021 CA 00004 14
parties as to the investigation of the GAL and gives the GAL report the weight it deserves.”
Additionally, from the trial court’s detailed judgment entry, it is clear the decision was not
based upon the lack of the GAL’s viewing of the interactions between K.A. and Mother,
as several other witnesses testified Mother had positive visits with K.A. The trial court
listed numerous other factors taken into consideration for its determination.
{¶49} Upon our review of the record, we find the trial court did not abuse its
discretion in its treatment of the testimony and report of the GAL. Superintendence Rule
48 does not create substantive rights. The trial court specifically addressed the issue in
the judgment entry, and we can find no reversible error, particularly where the trial court
has the discretion to follow or reject any recommendation of a GAL. Wine v. Wine, 5th
Dist. Delaware No. 04 CA F 10, 068, 2005-Ohio-975.
{¶50} Mother’s assignment of error is overruled.
Fairfield County, Case No. 2021 CA 00004 15
{¶51} The December 17, 2020 judgment entry of the Fairfield County Court of
Common Pleas, Juvenile Division, is affirmed.
By Gwin, J.,
Baldwin, P.J., and
Delaney, J., concur